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=  O 
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=  X 
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=  33 

=  33 

S  rrt 
=  CD 

5 
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2 

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;  O 


Savings  and  Loan  Soci'^tv  v,  ^ustiii, 
and  Bartlett,  Toe,  et  al ,  v.  Same. 
On  Rehearinp;.    Oral  Argument 


By 


Creed  Raymond 


IN     THE 


SUPREME    COURT 


OF  THE 


STATE    OF    CALIFOENIA. 


SAVINGS  and  LOAN  SOCIETY  v.  AUSTIN, 


AND 


BARTLETT,  DOE,  Et  Al.  v.  SAME. 


On   Rehearing. 


OF  COUNSEL   FOR    THE  STATE. 


SACRAMENTO: 

T.  A,  SPRINGER,  STATE  PRINTER. 
1873. 


""-::  •; 


IN    THK 


n\\\m\t  ^mtl  4  \\\t  ^Mt  4  4^Ii}>titict. 


SAVmGS  A]^D  LOAIT  SOCIETY, 

V. 

AUSTm,  AND  V    A      P   1        .'     ■ 

BARTLETT,  DOE,  et  al,  f    ^^  ivellCaiing. 

V. 

SAME. 


ORAL  ARGUMENT  OF  CREED  HAYMOND,  ESQ., 


OP  COUNSEL    FOR    THE  STATE. 


May  it  Please  the  Court:  These  are  actions  commenced 
by  the  respective  i^laintiffs  against  the  Tax  Collector  of  the 
City  and  County  of  San  Francisco,  to  restrain  the  sale  of 
property  for  taxes  assessed  in  the   last  fiscal  year. 

Upon  ex  parte  applications,  temporary  restraining  orders 
were  granted.  Subsequently,  defendant  moved  to  set  aside  the 
orders,  the  motions  were  denied,  and  from  the  orders  then 
made  these  appeals  were  taken. 

It  is  unnecessary  to  recapitulate  the  facts  of  the  case,  for 
they  are  fresh  in  the  minds  of  the  Court  and  of  counsel. 


[      4      ] 

The  object  of  the  actions,  and  of  the  various  others  dei^end- 
ing  upon  the  decision  in  these,  was  to  test  the  validity  of 
the  revenue  laws  embodied  in  the  Political  Code,  to  deter- 
mine whether,  if  valid,  they  applied  to  the  City  and  County  of 
San  Francisco;  and  to  dispose  of  the  vexed  question  presented 
by  taxation  of  solvent  debts.  After  an  elabox'ate  argument  on 
most  of  the  questions  involved,  the  Court  filed  an  opinion  de- 
termining: 

1.  That  the  provisions  of  the  Political  Code,  creating  a  State 
Board  of  Equalization,  and  defining  its  powers,  are  constitu- 
tional; 

2.  That  the  provisions  of  the  Political  Code  in  relation  to 
revenue,  apply  to  the  City  and  County  of  San  Francisco; 

3.  That  solvent  debts  are  not  subject  to  taxation;  and 

4.  That  a  Court  of  equity  will  not  interfere  by  injunction  to 
restrain  the  sale  of  property  for  taxes. 

Owing  to  the  importance  of  the  case,  the  magnitude  of  the 
interests  involved,  a  rehearing  has  been  granted  by  the  Court, 
and  a  reargument  ordered  ujDon  all  the  questions  presented  by 
the  record. 

The  main  features  of  the  revenue  system  established  by  the 
Code  are: 

A  determination  by  the  Legislature  of  the  amount  of  money 
annually  to  be  raised;  an  assessment  of  proj^erty  at  its  full 
cash  value  by  Assessors  elected  by  the  people  of  the  county 
or  district  in  which  the  property  to  be  taxed  is  situated; 
the  equalization  of  values,  as  between  individuals,  by  a 
County  Board,  consisting  of  persons  not  elected  by  the  peo- 
jile  of  the  district  in  which  the  property  is  situated;  the 
equalization  of  values,  as  between  the  counties,  by  a  State 
Board  not  elected  by  the  people;  the  fixing  of  a  rate  by  the 
State  Board  of  Equalization  sufiicient  to  raise  the  amount 
designated  by  the  Legislature;  and  the  collection  of  that 
rate  by  Collectors  elected  by  the  people  of  the  district  in 
which  the  property  is  situated. 

The  provisions  of  the  Constitution  are,  "That  taxation  shall 
be  equal  and  uniform  throughout  the  State.  All  property  in 
this  State  shall  be  taxed  in  proportion  to  Its  value — to  be  ascer- 
tained as  directed  by  law.    But  Assessors  and  Collectors  of  town, 


^:  [  5  ] 

county,  and  State  taxes,  shall  be  elected  by  the  qualified  elect- 
ors of  the  district,  county,    or  town    in    which   the  property 
,  taxed  for  State,  count}',  or  town  purjioses  is  situated."     (Art. 
"   XI,  Sec.  13.) 

The  provisions  of  the  Code  and  of  the  Constitution,  taken 
together,  we  claim  constitute  a  system  harmonious  in  all  its 
parts,  tending  to  the  accomplishment  of  the  leading  feature  of 
the  fundamental  law,  namely:  Uniformity — taxation  in  pro- 
portion to  values. 

A  brief  reference  to  historical  facts,  will  show  that  the  reve- 
nue system  supplanted  by  the  Code  did  not  approach  the  great 
leading  idea  of  the  Constitution;  did  not  impose  a  tax  upon 
property  in  proportion  to  its  value,  but  did  result  in  taxation 
at  war  with  the  very  purpose  sought  to  be  attained  by  the 
constitutional  provision  in   question. 

From  the  report  of  the  State  Board  of  Equalization,  organ- 
ized under  the  Act  of  eighteen  hundred  and  seventy,  we  learn 
that  in  the  year  eighteen   hundred  and  seventy,  property  in 
Alpine,  Amador,   Contra  Costa,   Fresno,  and  Tulare  Counties 
^was  by  the  Assessor  assessed  at  its  full  cash  value;  in   Inyo, 
'^Kern,  Klamath,  Lassen,  Mariposa,  Merced,  Mono,  and  Yuba,  at 
f,|  eighty  per  cent  of  its  full  cash  value;   in  San  Francisco,  Santa 
^Barbara,  Alameda,  and  some  other  counties,  at  less  than  fifty 
"^  per  cent  of  its  cash  value;  while  in  San  Mateo,  the  valuation  did 
ap  not  exceed  twenty-five  per  cent  of  the  cash  value. 
cj      It  will  be  seen  that  the  owner  of  one  hundred  dollars  worth 
of  property  in  Alpine  paid  twice  as  much  revenue  to  the  State 
Government  as  the  owner  of  a  like  amount  of  property  in  San 
Francisco,   and  the  owner  of   one   hundred   dollars   worth   of 
property  in  San  Francisco  paid  twice  as  much  revenue  to  the 
same  Government  as  the  owner  of  a  like  amount  of  property 
in  San  Mateo. 

It  was  to  sweep  from  existence  a  system  which  led  to  such 
results — a  system  unjust  in  its  every  feature — that  a  State 
Board  of  Equalization  was  established,  clothed  with  power  to 
equalize  the  values  as  between  counties. 

We  are  told  by  the  learned  counsel  for  respondents  that  the 
action  of  the  State  Board  of  Equalization  "irritates"  the  local 
authorities;  that  the  presence  of  one  of  its  members  in  San 


[      6      ] 

Francisco  at  the  session  of  the  local  Board  was  obnoxious  to 
the  members  of  the  latter;  but  the  learned  counsel  failed  to 
state  that  the  irritation  in  the  instance  cited  arose  from  the 
fact  that  within  an  hour  of  midnight,  on  the  last  da}^  of  the 
session  of  the  San  Francisco  Board,  the  Board  attempted  to 
strike  from  the  assessment  roll  about  fifty  millions  of  property 
belonging  to  the  wealthiest  and  largest  dividend-paying  corpo- 
rations in  that  city,  and  were  defeated  by  the  prompt  action  of 
the  member  of  the  State  Board  whose  presence  was  so  irritating. 
We  are  told  by  the  learned  counsel  that  the  action  of  the 
State  Board  has  been  in  hostility  to  San  Francisco.  Such 
a  fact  could  not  be  made  the  basis  of  an  argument  against 
the  existence  of  the  power  in  the  Legislature  to  create  the 
Board.  But  the  fact  does  not  exist.  On  the  contrary,  under 
the  action  taken  by  the  State  Board,  the  rate  of  taxation  in  the 
city  last  year  was  one  dollar  and  fifty  cents  on  each  one  hun- 
dred dollars  worth  of  proj^ert}";  while  this  year,  the  local  au- 
thorities having  been  undisturbed  in  their  action,  the  rate  will 
probably  exceed  two  dollars  on  each  one  hundred  dollars  worth 
of  property. 

A  COURT  WILL  NOT  DECLARE  A  STATUTE  UNCONSTITUTIONAL 
UNLESS  ITS  INVALIDITY  IS  ESTABLISHED  BEYOND  A  REASON- 
ABLE   DOUBT. 

But  it  is  not  with  the  policy  of  this  statute  or  its  provi- 
sions that  we  have  to  deal.  The  question  presented  requires 
an  examination  at  your  hands  of  the  authority  of  the  Legisla- 
ture to  enact  the  revenue  system  contained  in  the  provisions 
of  the  Code — the  exercise  of  the  most  delicate  power  con- 
ferred upon  a  Court — a  power,  the  existence  of  which  was 
formerly  denied  in  toto  by  some  of  the  most  distinguished 
public  men,  and  which  is  never  to  be  exercised  except  when 
the  conflict  between  the  statute  and  the  Constitution  is  palpa- 
ble and  incapable  of  reconciliation. 

In  the  case  of  Satito  v.  The  State  of  Iowa,  2  Iowa  Eeports,  p. 
186,  Mr.  Justice  Woodward  said: 

"For  some  time  after  the  establishment  of  the  State  Govern- 
ment it  was  doubted  whether  the  judiciary  possessed  authority 


[   '   ] 

to  declare  and  hold  an  Act  of  the  Legislature  unconstitutional 
and  void,  and  the  exercise  of  the  power  was  declined  by  some 
Courts.  And  now,  although  the  power  is  universally  admitted, 
its  exercise  is  considered  of  the  most  delicate  and  responsible 
nature,  and  is  not  resorted  to  unless  the  case  be  clearly  deci- 
sive and  unavoidable.  It  is  the  duty  of  the  Court  to  give  an 
Act  such  construction,  if  possible,  as  will  maintain  it." 

Said  the  Supreme  Court  of  Indiana  (4  Indiana,  p.  344),  in  the 
case  of  Maize  v.  The  State: 

"Such  questions  (involving  the  constitutionality  of  statutes) 
are  alwaj^s  regarded  by  the  Coui'ts  as  of  serious  importance; 
the  judiciary  look  to  the  Acts  of  Legislatures  with  great  respect, 
and  reconcile  and  sustain  them  if  possible.  The  General  As- 
sembly is  the  immediate  exponent  of  the  popular  will,  expressly 
delegated  to  clothe  that  will  with  forms  of  law.  The  presump- 
tion that  such  a  body  has  sanctioned  enactments  in  violation  of 
the  Constitution  is  not  to  be  lightly  indulged.  That  the  Act  is 
imperfect,  or  impolitic,  is  not  enough.  These  defects  subse- 
quent legislation  can  remove  by  amendment  or  repeal.  To 
bring  its  validity  within  the  'control  of  the  Courts  it  must  be 
clearly  subversive  of  the  Constitution." 

In  The  People  v.  The  Central  Pacific  Railroad  Company  of  Cali- 
fornia, decided  at  the  April  Terra,  1872,  it  is  asserted  in  sub- 
stance, that  the  legislative  power  is  restrained  only  by  the  lim- 
itations of  the  Constitution  clearly  imposed  upon  its  exercise, 
and  that  a  statute  enacted  is  not  to  be  put  aside  by  the  Courts, 
unless  its  conflict  with  the  fundamental  law  be  manifest.  For, 
say  the  Court,  "  The  deference  we  owe  to  the  legislative  will  is 
only  second  to  that  which  we  owe  to  the  commands  of  the 
Constitution,  which  both  the  Legislature  and  the  Court  are 
sworn  to  obey." 

In  The  Stockton  and  Visalia  Railroad  Company  v.  The  City  of 
Stockton,  41  Cal.,  p.  1G2,  the  authorities  bearing  upon  this  propo- 
sition are  collated  and  examined,  and  the  results  stated  as  fol- 
lows: 

"  Whenever,  therefore,  it  is  alleged  that  a  statute  which  has 
been  enacted  in  due  form  by  the  legislative  department  of  the 


[      8      ] 

Government  of  this  State  is  indeed  in  excess  of  its  authority  to 
enact,  it  is  necessarily  the  allegation  of  an  exception  to  the 
contrary  of  an  admitted  general  rule;  and,  therefore,  the  con- 
struction is  'strictly  against  those  who  stand  upon  the  excep- 
tion, and  liberal  in  favor  of  the  Government  itself.'  Hence, 
when  we  are  called  upon  to  declare  that  there  was  no  authority 
for  the  Legislature  to  enact  a  particular  statute,  it  is  necessary 
that  we  be  pointed  to  the  clause  or  clauses  of  one  or  the  other, 
or  both  of  these  Constitutions  supposed  to  have  taken  away  the 
power  entirely,  or  limited  it  to  something  less  than  the  subject 
to  which  the  Legislature  has  applied  it.  It  will  not  do  to  talk 
about  the  '  spirit  of  the  Constitution  '  as  imposing  a  limitation 
upon  a  legislative  power.  The  limitation  ought  to  be  some- 
thing definite  in  itself — as  definite  as  a  sum  to  be  subtracted 
from  a  larger  one  in  order  to  ascertain  a  balance." 

The  power  of  this  Court  to  declare  an  Act  of  Legislature 
unconstitutional  is  never  to  be  exercised  in  doubtful  cases. 
Whenever  the  proposition  is  fairly  debatable — whenever  there 
is  a  reasonable  doubt  as  to  the  constitutionality  of  the  Act — the 
Court  is  bound  to  declare  the  Act  valid.  Courts  will  not  hear 
arguments  for  and  against  the  validity  of  an  Act  of  the  Legisla- 
ture and  determine  its  validity  ujion  the  preponderance  of  argu- 
ment on  the  one  side  or  the  other,  for  whenever  a  reasonable 
doubt  arises  the  question  is  decided  in  favor  of  the  validit}^  of 
the  Act.  The  Legislature  impersonates  the  aggregate  sover- 
eignty of  the  people;  it  is  practically  omnipotent,  except  in 
those  particulars  in  which  its  power  has  been  limited,  qualified, 
or  absolutely  withdrawn  by  provisions  of  the  Federal  or  State 
Constitution.  Chief  Justice  Black,  in  speaking  of  this  feature 
of  our  governmental  system,  in  Sharpless  v.  The  Mayor  of 
Philadelphia,  21  Pennsylvania  State  Eeports,  p.   160,  says: 

''If  the  people  of  Pennsylvania  had  given  all  the  authority 
which  they  themselves  possessed,  to  a  single  person,  they 
would  have  created  a  despotism  as  absolute  in  its  control  over 
life,  liberty,  and  property  as  that  of  the  Eussian  Autocrat. 
But  they  delegated  a  portion  of  it  to  the  United  States,  spec- 
ifying what  they  gave,  and  withheld  the  rest.  The  powers  not 
given  to  the  Government  of  the  Union  were  bestowed  upon  the 


[  9  ] 

Government  of  the  State,  with  eertuin  limitations  and  excep- 
tions expressly  set  down  in  the  State  Constitution.  The  Fed- 
eral Constitution  confers  powers  particularly  enumerated;  that 
of  the  State  contains  a  general  grant  of  all  powers  not  ex- 
cepted. The  construction  of  the  former  instrument  is  strictly 
against  those  who  claim  under  it;  the  interjDretation  of  the 
latter  is  strictly  against  those  who  stand  upon  the  exceptions, 
and  liberal  in  favor  of  the  Government  itself.  The  Federal 
Government  can  do  nothing  but  what  is  authorized,' expressly 
or  by  clear  implication;  the  State  may  do  whatever  is  not 
prohibited." 

The  duty  of  a  Court  in  passing  upon  the  constitutionality  of 
a  legislative  enactment,  may  be  likened  to  that  of  a  jury  in 
passing  upon  the  guilt  or  innocence  of  an  accused  person  in  a 
criminal  case.  With  the  jury,  every  presumption  is  in  favor  of 
innocence.  The  State  asserts  the  guilt  and  must  prove  it;  if 
there  be  a  reasonable  doubt,  the  verdict  must  be,  not  guilty. 
With  the  Court,  every  presumption  is  in  favor  of  the  validity  of 
the  Act.  He  who  asserts  the  contrary  must  establish  the  in- 
validity beyond  a  reasonable  doubt,  or  the  Court  must  declare 
the  law  valid. 

With  the  well  settled  rules  governing  the  exercise  of  this 
delicate  power  in  view,  we  proceed  to  an  examination  of  the 
questions  involved. 

THE   CONSTITUTION     DOES     NOT    REQUIRE   VALUATIONS   TO    BE    MADE 

BY    ASSESSORS. 

The  provisions  of  the  Constitution,  with  which  it  is  claimed 
the  Code,  in  relation  to  revenue,  conflict,  are  found  in  Section 
13  of  Article  XI.  That  section  contains  four  distinct  prop- 
ositions: First — Taxation  shall  be  equal  and  uniform.  Sec- 
ond— All  property  shall  be  taxed  in  proportion  to  its  value. 
Third — That  value  shall  be  ascertained  as  directed  by  law. 
Fourth — Assessors  and  Tax  Collectors  must  be  elected  by  the 
qualified  electors  of  the  district,  county,  and  town  in  which  the 
property  taxed  for  State,  county,  and  town  purposes  is  situated. 


[    10    ]       ■ 

It  is  iijDon  the  fourth  proposition  that  the  argument  is  based 
that  valuations  must  be  made  by  Assessors  elected,  etc. 

In  the  petition  for  rehearing,  we  are  referred  to  the  debates 
in  the  Constitutional  Convention,  and  it  is  claimed  they  support 
the  views  taken  by  respondents.  The  clause  in  question  was 
inserted  in  the  Constitution  of  this  State  at  the  instance  of  the 
native  Californians  (nine  in  number)  who  were  members  of  the 
Constitutional  Convention.  They  were  the  owners  of  large 
tracts  of  unproductive  land,  and  were  fearful  that  the  burdens 
of  Government  might  be  imposed  upon  them.  To  obviate  their 
objections,  and  to  prevent  their  opposing  the  adoption  of  the 
Constitution,  this  clause  was  inserted,  but  whether  it  accom- 
plishes the  purpose  they  hud  in  view  or  not,  is  another  question. 

The  debates  of  a  legislative  body  cannot  be  relied  upon  in 
the  iuterj)retation  of  a  law  made  by  such  body.  As  said  by 
Justice  Ehodes,  in  The  People  v.  McCreery,  34  Cal.,  p.  453,  they 
"furnish  but  an  uncertain,  and  often  unreliable,  guide  in  the 
interpretation  of  Constitutions  and  laws.  It  frequently  happens 
that  no  one  expresses  the  views  of  those  by  whose  votes  a 
measure  of  importance  is  passed.  Those  who  sustain  the  raa- 
joritj^  may  be  satisfied  with  the  vote,  without  discussion,  and  if 
one  or  more  of  them  do  join  in  the  debate,  it  does  not  follow 
that  their  intention  or  their  interpretation  of  the  measure  is 
that  of  the  majority."  Much  less  can  the  debates  in  a  Consti- 
tutional Convention  be  cited  as  authority  in  the  interpreta- 
tion of  provisions  of  the  Constitution.  A  Constitution  is  not 
made  by  the  Conveiition  which  prepares  it,  but  by  the  people 
who  may  never  see  the  debates.  On  the  adoption  of  the 
Constitution  of  California  we  know  they  could  not  have  seen 
them,  and  could  not  have  been  influenced  one  way  or  the  other 
by  them.  It  is  a  well  known  fact,  that  the  debates  of  the  Cali- 
fornia Constitutional  Convention  were  badly  reported  —  the 
report  being,  in  fact,  but  a  skeleton  of  the  debates,  and  unrelia- 
ble in  every  particular.  We  must  find  the  intention  of  the 
framers  of  the  Constitution  in  the  languasre  of  the  instrument 
itself;  and  our  position  is,  that  the  fact  that  the  term  "As- 
sessor" is  mentioned  in  the  Constitution,  does  not  place  the 
officer  beyond  legislative  control,  nor  prevent  the  Legislature 
from  prescribing  the  duties  of  the  office.     We  contend  that  the 


[  11  ] 

term  Assessor,  as  used  in  the  Constitution,  does  not  carry  with 
it  any  definition  ol'  tlie  powers  of  that  otfieer,  and  that  it  is  left 
to  the  Legislature  to  declare  wiiat  his  powers  and  duties  shall 
be.  I  am  aware  that  this  Court  in  one  ease  intimated  that  the 
valuation  of  property  must  be  fixed,  in  the  first  instance,  by  the 
Assessors  elected  by  the  people,  and  that  a  law  taking  from 
the  Assessors  that  power,  and  placing  it  in  the  hands  of  an 
officer  not  so  elected,  would  be  in  violation  of  the  constitutional 
provision  1  have  referred  to.  At  tlie  time  our  Constitution  was 
adopted,  there  was  not  within  the  limits  of  the  State  an  officer 
known  by  the  name  of  Assessor,  while  by  referring  to  the  laws  of 
other  States  of  the  Union,  we  find  that  the  power  of  fixing  the 
value  of  property  for  the  purpose  of  taxation  was  given  under 
their  Constitutions  and  laws  to  various  officers;  officers  known 
by  different  names — in  some  States  as  Assessors,  in  some  States 
as  Commissioners,  and  in  others,  by  other  names;  but  I  be- 
lieve there  is  not  a  single  State  in  which  it  was  ever  claimed 
that  the  valuation  fixed  by  such  officers  was  final  and  binding. 
The  Constitution  declares  that  Assessors  and  Collectors  must 
be  elected.  If  the  use  of  the  word  Assessor  carries  with  it  a 
definition  of  and  fixes  the  duties  of  the  officer,  so  the  use  of  the 
word  Collector  carries  with  it  a  definition  of  and  fixes  the  duties 
of  the  officer.  "Collector"  is  defined  to  be  one  appointed  to 
receive  taxes.  JSIow  it  must  be  admitted  that  if  the  Legisla- 
ture could  confer  upon  any  other  officer  the  power  to  collect 
taxes,  it  could  also  confer  the  power  of  assessing  upon  some 
other  officer.  The  two  officers  are  put  upon  precisely  the  same 
footing  by  the  Constitution,  and  whatever  can  be  done  in  rela- 
tion to  one  by  the  Legislature  can  be  done  as  well  in  rela- 
tion to  the  other.  In  The  Attorney  General  v.  Squires,  14  Cal., 
p.  17,  the  Court  say: 

"The  only  difficulty  we  encounter  is  in  the  constitutional  ob- 
jection to  this  appointment  of  Squires  by  the  Board  of  Super- 
visors. If  the  Collector  of  Foreign  Miners'  Licenses  be  an 
officer  within  the  thirteenth  section  of  Article  XI  of  the 
Constitution,  it  is  said  that  he  must  be  elected  by  the  qualified 
electors  of  the  district,  county,  or  town,  etc.  Here  it  is  pro- 
vided he  shall  be  appointed  by  the  Board  of  Supervisors.     But 


[     12     ] 

it  might  be  said,  probably,  in  rej^lj',  that  this  appointment  is 
not  necessarily  void  on  this  account;  that  the  appointment  may 
be  temporarily  lodged  in  the  hands  of  the  Supervisors — as  it 
might  be  temporarily  given  to  a  Governor — and  would  be  good, 
at  least  until  a  general  election.  But  waiving  this:  the  error 
of  the  argument  is  in  supposing  that,  because  Assessors  and 
Collectors  are  constitutional  officers,  every  portion  of  the  rev- 
enue must  necessarily  pass  through  their  hands.  We  do  not 
see  that  it  would  be  at  all  unconstitutional  to  authorize  every 
taxpayer  to  pay  his  taxes  directly  into  the  treasury.  The  law 
authorizes  many  acts — such  as  the  service  of  papers,  etc. — which 
seem  appropriately  to  belong  to  the  Sheriff's  oifice,  to  be  done 
by  the  j^arties  or  private  persons.  The  law  might  authorize 
the  collection  of  stamp  duties  by  Notaries,  or  by  the  Secretary 
of  State;  or  steamboat  licenses,  or  saloon,  or  billiard  licenses 
by  clerks  or  Sheriffs;  or  taxes  on  writs  by  clerks.  Indeed,  the 
whole  of  the  license  receipts,  where  licenses  are  required,  we 
apprehend  might  be  made,  if  they  are  not  now,  receivable  by 
other  parties  than  Tax  Collectors.  If  the  Legislature  could  do 
away  with  the  tax  entirely,  after  the  qualification  of  the  Sheriff, 
it  is  diflScult  to  see  why  they  could  not  change  the  hands  that 
were  to  collect  it.  Though  the  license  may  be  considered  in 
some  sense  as  a  tax,  yet  probabl}^  it  is  not  so  in  that  sense 
which  was  involved  in  the  supposed  necessary  duties  of  the 
Ta?  Collector — as  a  tax  on  land  or  personal  property.  It  is  a 
special  contribution,  laid  on  a  certain  class  of  foreigners  for  the 
support  of  Government,  and  created  by  special  Act  of  the  Leg- 
islature. The  duties  of  Tax  Collectors  are  wholly  undefined  by  the 
Constitution,  as  also  their  services  and  compensation;  these  are 
left  to  legislative  direction,  and  we  cannot  see  that  an  Act  of 
the  Legislature,  committing  this  special  duty  of  collecting  this 
license  money  to  particular  officers  selected  by  the  Board  of 
Supervisors,  is  a  clear  violation  of  the  Constitution — in  which 
event  only  could  we  declare  it  void." 

We  contend,  as  the  Supreme  Court  say  in  the  case  I  have 
read  from,  that  if  it  is  competent  for  the  Legislature  to  take 
from  the  Collector  the  duties  pertaining  to  his  office — a  consti- 
tutional office  as  much  as  the  office  of  Assessor — and  place 


[  13  ] 

them  upon  another  ofRc'er..  it  is,  by  purity  of  reasoning,  equally 
competent  for  the  Legislature  to  confer  duties  devolving  upon 
Assessors,  upon  other  officers.  In  other  States,  the  value  of 
property  is,  in  the  first  instance,  fixed  by  Assessors;  but,  as 
will  be  seen  by  reference  to  the  Political  Code  (page  58,  anno- 
tated, vol.  2),  where,  and  on  subsequent  pages,  the  various  laws 
of  the  different  States  have  been  compiled,  in  none  of  the 
States — in  not  one  of  them — is  the  action  of  the  Assessor  re- 
garded as  final.  In  all  of  them  there  are  Boards  for  equalizing 
purposes,  vested  with  power  to  raise  or  lower  the  valuations 
made  by  the  Assessors. 

The  Constitution  provides  for  the  election,  by  the  people,  of 
various  other  officers,  among  which  arc  the  Attorney  General, 
the  Controller,  Sheriffs,  and  Clerks.  If  the  insertion  of  the 
word  "Assessor"  in  the  Constitution  carries  with  it  a  whole 
code  of  laws  defining  and  fixing  his  duties,  and  takes  from  the 
Legislature  the  power  to  alter  those  duties,  or  to  cast  them 
upon  any  other  officer,  the  same  rule  must  be  applied  in  the 
case  of  a  Controller,  Sheriff's,  and  Clerks.  We  have  seen  that 
the  term  "  Assessor  "  has  no  fixed  meaning,  in  American  law  at 
least.  On  the  other  hand,  the  duties  of  the  Controller  were 
well  known  at  the  time  of  the  adoption  of  the  Constitution — an 
officer  exercising  the  duties  of  Controller  then  existed  in  every 
State  of  the  Union,  sometimes  under  the  name  of  Controller, 
sometimes  under  the  name  of  Auditor.  An  officer  with  similar 
powers  has  an  existence  under  the  Federal  Government,  un- 
der the  name  of  "Auditor,"  and  the  duty,  in  every  instance, 
whatever  the  officer  was  called,  was  to  audit  and  pass  upon 
claims  against  the  Government  of  which  he  was  an  officer.  In 
this  State,  it  has  been  expressly  decided  that  the  Legislature 
may  take  from  the  Controller  duties  which  pertain  to  his  office 
and  devolve  them  upon  another  officer,  or  a  Board  of  officers. 
In  Ross  vs.  Whitman,  6  Cal.  364,  where  the  precise  question 
arose,  the  Court  said: 

"Where  an}^  of  the  duties  or  powers  of  one  of  the  depart- 
ments of  the  State  Government  are  not  disposed  of  or  distribu- 
ted to  particular  officers  of  that  department,  such  powers  or 
duties  are  left  to  the  disposal  of  the  Legislature.     When,  there- 


[     14     ] 

fore,  the  Legislature  appointed  a  Board,  consisting  of  three 
executive  State  officers,  to  perform  a  certain  duty  which  there- 
tofore had  been  performed  by  the  Controller  of  the  State,  but 
which  is  not  prescribed  by  the  Constitution  as  the  peculiar  duty 
of  that  officer,  we  hold  the  act  valid  and  binding,  because  the 
power  of  the  Legislature  is  supreme  except  where  it  is  ex- 
l^ressly  restricted." 

The  Constitution  prescribes  that  Sheriffs  must  be  elected  by 
the  people;  yet,  would  it  be  contended  that  the  various  laws 
which  have  been  passed  in  this  State  allowing  the  service  of 
summons  to  be  made  by  persons  other  than  Sheriffs,  are 
unconstitutional,  because  such  duties  were  formerly  devolved 
upon  Sheriffs?  Counsel  for  resjjondent  having  invoked 
the  debates  in  the  Constitutional  Convention,  we  invoke  the 
action  of  the  men  who  framed  that  Constitution.  Many  mem- 
bers of  the  Constitutional  Convention  were  members  of  the  first 
Legislature  which  assembled  in  this  State.  That  Legislature 
provided  for  County  Boards  of  Equalization,  and  conferred 
upon  them  power  to  change  the  valuation  of  property  from 
that  fixed  by  the  Assessors,  and  from  that  time  to  this  the 
power  has  been  exercised,  this  Court  repeatedly  affirming  its 
constitutionality. 

Such  legislation  must  rest  for  its  support  upon  the  same  au- 
thority as  the  Act  creating  the  State  Board  of  Equalization. 
If  we  are  to  be  held  to  the  rule  that  the  valuation  can  only  be 
made  by  some  officer  elected  by  the  people  of  the  district  in 
which  the  property  is  situated,  it  will  follow  as  a  necessary 
consequence  that  the  action  of  the  County  Boards  of  Equaliza- 
tion have  been  unconstitutional,  and  that  this  Court  must  now 
reverse  the  former  decisions  sustaining  the  Legislature  by 
which  the  County  Boards  were  created.  It  is  true  the 
Boards  of  Supervisors,  which  of  late  years  have  constituted 
the  Boards  of  Equalization,  have  been  elected  by  the  people; 
but  it  is  also  true  that  they  have  not  been  elected  by  the 
people  of  the  whole  county.  Counties  have  been  divided  into 
Supervisor  districts — two,  three,  four,  five,  and  some  as  high  as 
twelve  Supervisor  districts— and  the  members  of  the  Board  are 
elected  by  the  electors  of  different    districts,  and    yet    they 


[     15     ] 

pass  upon  valuations  of  property  in  other  districts.  If  the 
argument  be  a  sound  one,  that  the  valuation  must  be  fixed  by 
an  officer  elected  by  the  people  of  the  district — and  cannot  be 
changed  by  any  but  an  officer  so  elected — it  must  be  admitted 
that  the  whole  practice  of  the  State  for  twenty  years  has  been 
wrong,  and  that  this  Court  has  during  all  that  time  upheld 
that  wrong  in  the  various  eases  that  have  been  brought  here 
involving  the  question. 

But,  turning  again  to  this  clause  of  the  Constitution,  we  see 
that  not  only  is  the  Legislature  authorized  to  create  a  State 
Board  of  Equalization,  but  that  the  very  provisions  of  the  Con- 
stitution which  are  invoked  against  the  power  requires  the 
Legislature  to  establish  a  tribunal  of  that  character.  There 
are  four  propositions  contained  in  that  section.  One  of  them, 
that  the  Assessors  and  Collectors  must  be  elected  by  the  people, 
I  have  already  noticed.  That  is  the  last  clause  of  the  section. 
A  preceding  clause  requires  that  all  property  in  the  State  shall 
be  taxed  in  proportion  to  its  value;  and  another  clause  pre- 
scribes that  the  value  is  to  be  ascertained  as  directed  by  law. 

Now,  may  it  please  the  Court,  it  is  a  principle  well  settled  in 
the  construction  of  Constitutions,  as  of  statutes,  that  the  Court 
must  give  force  and  effect  to  ever}"  clause — every  word  in  a  given 
section.  If  it  be  true,  that  under  this  Constitution  the  Assessors 
are  to  fix  the  value  of  property,  and  that  their  action  to  that  end 
is  final,  wiiat  effect  can  be  given  to  the  provision  which  declares 
that  its  value  shall  be  ascertained  as  directed  by  law?  "All 
property  in  this  State  shall  be  taxed  in  proportion  to  its  value,  to 
be  ascertained  as  directed  by  law."  If  the  action  of  the  Asses- 
sor was  to  be  final,  what  office  would  any  law,  directed  toward 
ascertaining  the  value  of  the  property,  have  to  perform?  We 
say  none. 

But  there  is  another  clause  3'et — the  first  clause,  which  ap- 
pears to  be  the  leading  idea  in  this  whole  matter — and  that  is, 
that  "taxation  shall  be  equal  and  uniform  throughout  the  State." 
Now  I  assert  here,  that  if  you  apply  to  the  State  Constitution 
the  same  rule  which  you  aj^pl}^  in  the  construction  of  the  Fed- 
eral Constitution — that  it  is  a  grant  of  power — you  will  still  be 
able  to  find  in  this  provision  the  power  to  establish  such  a 
Board.     "Taxation  shall  be  equal  and  uniform  throughout  the 


[     16     ] 

State,"  says  the  Constitution.  It  does  not  prescribe  the  rules 
by  which  that  uniformity  shall  be  reached,  nor  how  the  valua- 
tions shall  be  equalized.  It  leaves  those  matters  to  the  Leg- 
islature; and  we  say,  that  here  is  a  mandatory  provision  of 
the  Constitution  binding  upon  the  conscience  of  the  legislator 
which  requires  him,  in  his  capacity  as  a  law  maker,  to  estab- 
lish some  tribunal  by  which  the  end  sought  may  be  attained. 
"Taxation  shall  be  equal  and  uniform  throughout  the  State." 
How  would  it  be  possible  to  attain  that  equality  and  uni- 
formity which  this  Constitution  seems  to  contemplate,  if 
the  assessments  made  by  the  Assessors  are  to  be  final?  It 
would  not  be  possible.  The  experience  of  the  past  has  shown 
that  even  with  the  aid  of  the  County  Boards  of  Equalization  it 
could  not  be  attained.  So  far  from  having  equality  and  uni- 
formity in  taxation,  we  have  had  inequality  without  uniformity. 
"We  have  had  as  many  bases  of  taxation,  as  many  different 
methods  of  valuation  and  equalization,  as  there  have  been  As- 
sessors and  Boards  of  Equalization  in  the  various  counties.  So 
that  we  have  learned  that  a  State  Board,  with  power  to  super- 
vise and  harmonize  the  subordinate  agents,  is  indispensable,  in 
order  to  carry  out  the  mandate  of  our  fundamental  law. 

THE  POWER  TO  ASSESS  DOES  NOT  INCLUDE  THE  POWER  TO 

EQUALIZE. 

Assuming,  for  the  sake  of  the  argument,  what  we  deny  in 
fact,  that  the  Constitution  requires  a  valuation  to  be  made  by 
an  Assessor  elected  by  the  people,  yet  it  will  not  follow  that 
the  powers  and  duties  devolved  uj^on  the  State  Board  of  Equal- 
ization are  obnoxious  to  the  constitutional  provisions.  Sec- 
tion 13,  of  Article  XI,  of  the  Constitution,  among  other  things, 
requires,  in  relation  to  the  revenue,  the  exercise  of  at  least  three 
distinct  powers:  assessment,  equalization,  and  collection.  The 
mode  and  manner  in  which  these  several  and  distinct  powers 
are  to  be  exercised — with,  at  most,  the  exception  that  the  par- 
ticular ofiicers  who  exercise  in  part  the  first  and  last  named 
powers  must  be  elected,  etc. — are  left  to  the  discretion  of  the 
Legislature. 

The  power  to  assess  is  one  thing;  the  power  to  equalize  is 
another;   and  the  power  to  collect,  still  another.     But  all  must 


[  17  ] 

be  exercised  if  we  are  to  carry  out  the  provisions  of  the  Consti- 
tution. The  definition  of  the  word  "equalize"  given  li}'  Web- 
ster is,  "  to  make  equal;  as  to  equalize  accounts;  to  equalize 
taxes  or  burdens."  Now  this  power  was  never  vested  in  the 
Assessor  in  any  State.  It  is  a  separate  and  distinct  power  from 
the  power  to  assess.  It  is  true  that  a  knowledge  of  some 
of  the  facts  necessary  to  make  an  assessment  may  be  nec- 
essary to  making  an  equalization,  but  it  docs  not  follow  that 
they  are  one  and  the  san)e  tiling.  It  is  only  after  tlie  duty  of 
the  Assessor  has  been  fully  performed  that  the  exercise  of  the 
power  to  equalize  commences.  It  is  a  power  intervening  be- 
tween the  assessment  and  collection  of  taxes — a  power  the 
existence  of  which  is  recognized  by  almost  every  State  in  the 
Union.  This  ver}'  question  has  been  passed  upon  in  tlie  State 
of  Illinois,  and  the  power  has  been  affirmed.  I  refer  to  the 
case  of  The  People  of  the  State  of  Illinois  ex.  rel.  0.  H.  Miner, 
Auditor,  etc.,  v.  Edicard  S.  Solomon,  County  Clerk  of  Cook  County, 
reported  in  4G  Illinois  Reports,  p.  333.  The  provision  of  the 
Illinois  Constitution,  corresponding  to  ours,  is  as  follows  (Ar- 
ticle IX,  section  2): 

"The  General  Assembly  shall  provide  for  lev3-ing  a  tax  by 
valuation,  so  that  every  person  and  corporation  shall  pay  a  tax 
in  proportion  to  the  value  of  his  or  her  property;  such  value  to 
be  ascertained  by  some  person  or  persons  to  be  elected  or  ap- 
pointed in  such  a  manner  as  the  General  Assembly  shall  direct, 
and  not  otherwise." 

It  will  be  seen  that  the  Constitution  of  Illinois,  like  the  Con- 
stitution of  our  own  State,  provides  that  propei'ty  shall  be  val- 
ued, in  the  first  instance,  by  persons  elected  or  appointed  for 
that  purpose — both  Constitutions  in  that  respect  being  substan- 
tially the  same.  On  the  8th  of  March,  18G7,  an  Act  to  amend 
the  revenue  laws,  and  to  establish  a  Board  for  the  equali- 
zation of  assessments,  was  passed  by  the  Legislature  of  Illi- 
nois. The  leading  features  of  that  Act  do  not  vary  from  our 
own  law.  Tlie  reasons  which  led  to  the  enactment  of  the 
statute   in  that  State  are  similar  to    those  Avhich  led   to  the 


[     18     ] 

enactment  of  our  own  statute.  The  validity  of  the  Illinois 
statute  was  attacked,  and  the  power  of  the  Legislature  to  pass 
it  was  challenged  on  the  precise  grounds  urged  against  our 
statute. 

In    The    People  v.    Solomon,   supra,    the    Supreme    Court   of 
that  State,  in  passing  upon  those  objections,  after  recapitulat- 
ing the  evils  which  existed  under  the  old  law,  and  showing 
that  the  grossest  inequalities  pervaded  the  assessments  in  the 
State,  say: 

"  If  the  Legislature  have  no  power  under  the  Constitution 
to  provide  a  corrective  for  these  monstrous  evils  inflicted  un- 
justly uj^on  the  individual  property  owner  and  robbing  the 
Treasury  of  the  State  of  its  just  revenues,  then,  indeed,  it  must 
be  conceded  that  it  is  a  feeble  instrument,  and  the  sooner  it  is 
overhauled  and  its  weak  places  strengthened  the  better.  But 
these  evils,  grievous  as  they  are,  and  even  if  tenfold  greater, 
furnish  no  apology  to  the  Legislature  for  a  law  to  correct 
them,  unless  such  law  shall  be  within  the  constitutional  com- 
j)etency  to  enact.  As  we  have  said  in  several  cases,  the 
framers  of  our  Constitution  have  taken  great  2)ain8  to  aflSrm 
the  principles  of  equality  and  uniformity  as  indispensable  to 
all  legal  taxation,  whether  general  or  local;  and  if  the  Act  of 
February  8th,  1867,  eschews  these  j)rinciples,  or  violates  them, 
it  must  be  condemned — however  praiseworthy  may  have  been 
the  object,  and  however  pressing  the  necessity.  The  great 
central  idea  of  the  Constitution,  and  of  its  framers,  was  not  a 
system  of  revenue  based  on  the  valuation  of  property,  but  uni- 
formity and  equality  in  the  assessment  of  the  tax  upon  it,  when 
valued,  so  that  every  person  should  pay  a  tax  in  proportion  to 
it.  That  is  the  leading  idea.  Is  that  object  infringed  ujjon  by 
the  Act  in  question?  Has  not  the  valuation  of  prof)erty  in  Cook 
County  been  ascertained  by  persons  appointed  by  the  General 
Assembly?  And  was  not  the  manner  of  their  appointment  an 
open  question  with  the  Legislature?  *  *  *  Keeping  in  view  that 
the  central  idea  of  section  two,  Article  IX,  of  the  Constitution, 
is  uniformity  of  taxation,  and  that  exact  uniformity  is  under 
no  system  practically  attainable,  an  approximation  to  it  is  all 
that  can  be  demanded.     When  property  is  valued  by  persons 


[     19     ] 

appointed,  or  elected   for  that  purpose,  the   injunction   of  the 
Constitution  is    obeyed.      AVhy  are  values  to  be   ascertained? 
So  that  every  person  and  corporation  shall  pay  a  tax  in  propor- 
tion to  value.     That  is  the  sole  object  of  valuation.     How  is 
the  fact  to  be  ascertained  that  in  levjnng  a  tax  on  this  valua- 
tion, which   evei'y  person    has  been  required   to  pa}',  it  is  in 
proportion  to  its  ascertained  value?    That  is  the  important  ques- 
tion.    *     *     *     It  may  be  asked,  how  shall  the  value  be  ascer- 
tained by  the  persons  elected  or  appointed  for  this  purpose? 
The  Constitution  prescribes  no  mode.     None  of  the  details  are 
found  there.     The  great  principle  onlj^  is  announced  that  val- 
uation shall    be  the  biisis,  in   order  to  produce   uniformity  in 
results,  all  else   being  left  to  the  wisdom  of  the  Legislature. 
Whatever  they  may  do;    whatever  mode   they  may  prescribe, 
which  does  not  overleap  this  boundary',  must   be  legitimate.     * 
*     *     The  true  value  of  property,  by  no  sj'stem  3'et  devised  by 
the  wit  of  man,  can   be   exactly  ascertained.     An  approximate 
value  having  been  returned  by  Assessors,  it  is  the  clear  object 
of  this  section  so  to  equalize  the  valuations  among  the  several 
counties  of  the  State  as  to  approximate,  not  to  reach — for  that 
is  also  impracticable — a  perfect,  but  an  attainable  degree  of  uni- 
formity, and  thus  carry  out  the  great  and  central  requirement  of 
the  Constitution;    and  this  by  the  application  of  the  doctrine  of 
averages — a  doctrine  which   enters  into  all   kinds  of  business, 
into  all  the  complicated  affairs  of  life,  and  which  has  received 
the  sanction   of  the  learned   and  the  wise   of  every  civilized 
nation.     What  is  the  object  of  this  provision  in  the  Constitu- 
tion (the  provision  that  propert}'  shall   be  taxed  in  proportion 
to  its  value)?     The  answer  is,  to  raise  a  revenue  for  the  sup- 
port of  the   Government.      On   what  shall  it   be  raised?      On 
property.     In  what  manner?     By  valuing  the  property  of  the 
several  counties  through  the  agency  of  persons  elected  or  ap- 
pointed for  that  purpose.     On  what  principle  must  the  tax  bo 
levied?      On    the    principle    of   uniformity,  by  which    all    the 
citizens  of  all  the  counties  shall  pay  a  tax,  not  in  precise  propor- 
tion to  the  value  of  their  propert}^,  but  as  nearly  so  as  the  ap- 
plication of  just  principles  to  the  value  of  it  will  be  most  likely 
to  i^roduce  the  desired  result."     "And,"  say  the  Court,  "  there 
is  nothing  in  the  Constitution  expressly  prohibiting  a  revision 


[     20     ] 

of  valuations  and  assessments,  and  that  principle  has  been  in- 
corporated into  our  revenue 'system  by  all  the  revenue  laws 
passed  since  the  ado^^tion  of  the  present  Constitution." 

It  will  be  seen  by  reference  to  the  provision  of  our  own 
Constitution  that  it  does  not  require  that  property  shall  be 
taxed  at  its  actual  cash  value,  but  the  requirement  is  that  it 
shall  be  taxed  in  proportion  to  its  value  to  be  ascertained  as 
directed  by  law. 

It  was  in  order  to  carry  out  this  provision  that  the  State 
Board  of  Equalization  was  created,  and  power  given  it  to 
equalize  the  values  as  between  the  counties  so  that  uniformity 
might  be  obtained.  A  State  Board  does  not  fix  the  value  upon 
property;  the  value  is  fixed  in  the  first  instance  by  the  Assess- 
ors of  the  respective  counties  or  districts;  but  the  State  Board 
does  reduce  the  rates  to  an  equal  standard,  so  that  the  same 
amount  of  property  in  Alpine  County  shall  bear  the  same  bur- 
den of  taxation  as  a  like  amount  of  propert}^  in  San  Francisco. 
If  authority  be  needed  to  sustain  the  proposition  which  we 
maintain  is  sustained  by  the  very  language  of  the  Constitution, 
that  authority  will  be  found  in  the  Illinois  case  cited,  for  it  is 
there  clearly  held  that  the  right  to  create  a  State  Board  of 
Equalization,  with  power  to  review  the  valuations  of  the  Assess- 
ors, is  vested  in  the  Legislature;  that  not  only  does  the  power 
exist,  but  it  is  the  duty  of  the  Legislature,  in  order  to  carry  into 
operation  the  provisions  of  the  Constitution  itself,  to  create  such 
a  Board. 

The  next  point  made  in  this  ease,  and  to  which  the  Court 
seem  to  attach  a  great  deal  of  importance,  arises,  if  it  arise 
at  all,  under  Section  3696  of  the  Political  Code: 

"At  the  same  time  the  Board  must  determine  and  transmit  to 
the  Board  of  Supervisors  of  each  county  the  rate  of  the  State 
tax  to  be  levied  and  collected,  which,  after  allowing  for  delin- 
quency in  the  collection  of  taxes,  must  be  sufficient  to  raise  the 
specific  amount  of  revenue  directed  to  be  raised  by  the  Legisla- 
ture for  State  purposes." 

I  believe  it  is  admitted  upon  all  sides  that  it  would  be  compe- 
tent for  the  Legislature  to  say  that  there  should  be  raised  for  any 


[     21     ] 

given  fiscal  year  a  specific  sum,  and  to  delegate,  if  I  may  so  call 
it,  the  power  to  make  the  computation  upon  tlic  return  of  the 
Assessors  so  as  to  ascertain  the  rate  per  eenLuiu  necessary  to 
raise  that  amount.  J3ut  it  is  contended  tliat  tlie  provision  in 
this  section  which  allows  the  State  Board  of  Equalization  to 
take  into  consideration  the  fact  that  there  might  be  a  delin- 
quenc}^,  in  computing  the  rate  of  tax  necessary  to  produce 
the  sum  specified  by  the  Legislature,  is  unconstituiioual,  be- 
cause it  is  a  delegation  of  legislative  power.  We  are  not 
here  to  den}'  the  proposition,  broadl}'  asserted  .upon  the 
other  side,  that  the  legislative  power  cannot  be  delegated. 
We  admit  that  a  power  conferred  upon  an  agent,  because  of 
his  fitness  and  because  of  the  confidence  rejiosed  in  liiiii,  cannot 
be  delegated  to  another.  That  Legislatures  stand  in  this  rela- 
tion to  the  people  whom  they  represent,  cannot  be  doubteil. 

We  maintain,  in  the  first  place,  that  in  the  section  under  con- 
sideration there  is  no  delegation  of  legislative  power  to  the 
State  Board  of  Equalization.  The  legislative  power  is  the 
authority  under  the  Constitution  to  make  laws,  and  to  alter  or 
repeal  them.  Is  there  any  delegation  of  such  an  authority 
here?  Was  not  this  law  perfect  and  complete  Avhen  it  em- 
anated from  the  law-making  power?  Does  this  section  confer 
upon  the  State  Board  of  Equalization  any  power  or  author- 
ity to  make  laws?  We  say  no.  It  is  true  that  there  is 
a  discretionary  2:)0wer  vested  in  the  Board  by  this  section, 
but  it  is  not  a  power  to  say  what  the  law  shall  be;  it  is  a 
power  to  ascertain  facts,  and  to  apply  the  law  to  them. 
Under  the  system  formerly  existing  in  this  State,  the  Legis- 
lature fixed  the  rate  of  taxation  in  advance  of  the  annual  as- 
sessments, and  it  was  utterly  impossible  that  the  Legislature 
should  or  could  know  the  amount  necessarj'  to  be  raised.  The 
inevitable  result  was,  that  either  a  greater  or  a  less  amount  of 
money  than  the  exigencies  of  the  State  required  was  raised. 
Under  the  jn-esent  system,  the  Legislature  first  fixes  the 
amount  necessary  to  carry  on  the  oj)erations  of  the  State 
government  at  a  sum  certain.  The  assessments  are  then 
made,  a  return  made  to  the  State  Board  of  Equalization  of 
the  amount  of  taxable  property  in  the  State,  and  by  a 
mathematical  calculation  the  Board  ascertains  the  rate  neces- 


[     22     ] 

sary  to  raise  the  amount  required  by  the  Legislature)  taking 
into  consideration  the  fact  that  expenses  are  incurred  in  the 
collection  of  the  revenue,  and  that  in  the  nature  of  things  there 
must  be  delinquencies. 

In  fixing  that  rate  the  Board  estimates  as  near  as  may  be  the 
expense  of  collecting  the  revenue  and  the  amount  of  the  delin- 
quency, and  fixes  a  rate  sufficient  to  raise  a  net  sum  equal  to 
that  required  by  the  Legislature.  The  Legislature  leaves  to 
the  Board  the  determination  of  a  question  of  fact  which  it 
could  not  jDOSsiblj'  determine  itself,  and  it  is  claimed  that  this 
is  a  delegation  of  the  law-making  power.  The  learned  counsel 
for  respondents  have  not  cited  any  cases  which  sustain  the 
theory  contended  for  by  them,  but  we  are  referred  to  numer- 
ous cases  in  the  different  States  which  assert  the  principle  that 
the  law-making  power  cannot  be  delegated.  Upon  a  review  of 
those  cases,  however,  it  will  be  found  that  in  none  of  them  is 
there  involved  the  question  presented  here.  They  are  of  that 
class  of  cases  in  which  the  question  presented  was  whether  it 
was  comjietent  for  the  Legislature  to  pass  bills  authorizing  the 
people  of  various  localities  to  decide  the  question  of  the  loca- 
tion of  county  seats;  of  whether  public  schools  should  be  main- 
tained or  not;  and,  in  some  of  them,  the  question  as  to  whether 
it  was  a  delegation  of  the  law-making  power  or  not  turned 
upon  the  form  of  expression  used  in  the  Act.  A  distinction 
was  taken  between  an  Act  which  prescribed  that  it  should  have 
the  force  6f  law  after  a  vote  of  the  people  of  the  locality  in  the 
affirmative,  and  an  Act  which,  in  form,  was  a  law  when  passed, 
but  depended  for  its  enforcement  upon  the  action  of  the  people 
of  a  locality — a  distinction  which  turned  upon  the  form  and 
not  upon  the  substance  of  the  Act;  a  distinction  which,  we 
think,  is  one  without  a  difference. 

In  Hohart  v.  The  Supervisors  of  Butte  County,  17  California, 
p.  24,  the  validity  of  an  Act  of  the  Legislature  authorizing  the 
Supervisors  of  that  county,  upon  the  affirmative  vote  of  the 
people,  to  issue  bonds  in  aid  of  the  construction  of  a  railroad, 
was  involved.  It  was  argued  that  as  the  Constitution  vests 
the  Legislature  with  the  law-making  power,  that  power  could 
not  be  delegated  to  the  people  of  the  State,  or  to  any  portion 
of  them.     It  was  contended  that  the  Act  in   question,  by  its 


[     23     ] 

fourth  section,  made  the  issuance  of  bonds  depend  upon  the 
result  of  the  election,  and  that,  therefore,  the  majority  of  the 
voters  of  the  county — and  not  the  Legislature — had  decreed 
their  issuance. 

"  But,"  say  the  Court,  "  the  legislative  department,  repre- 
senting the  mass  of  political  powers,  is  no  further  controlled 
as  to  its  powers,  or  the  mode  of  their  exercise,  than  by  the  re- 
strictions of  the  Constitution.  Such  restrictions  must  be  shown, 
before  the  action  of  the  Legislature,  as  to  fact  or  mode,  can  be 
held  invalid.  Accordingly,  the  Legislature  having  this  general 
power  of  enacting  laws,  may  enact  them  in  its  own  form,  where 
not  restrained,  and  give  to  them  such  effect,  to  be  worked  out 
in  such  way  and  by  such  means  as  it  chooses  to  prescribe." 

In  that  case,  great  stress  was  laid  upon  the  terms  of  the 
Act  in  question,  one  clause  of  which  was:  "If  the  election 
shall  authorize  the  issuance  of  said  bonds  the  Board  of  Super- 
visors, in  that  event,  are  empowered  to  issue  the  bonds."  It 
was  urged  that  the  language  of  the  Act  showed  that  the  au- 
thority for  the  issuance  of  the  bonds  came  from  the  election 
and  not  from  the  law,  and  that  therefore  the  voters  were  really 
the  law  makers;  as  in  the  case  at  bar,  it  is  contended  that  the 
authority  for  the  levy  comes  from  the  Board  of  Equalization 
and  not  from  the  Legislature.  But  the  Court,  in  answer  to 
that  argument,  said  the  provisions  of  the  law  were  completed 
by  the  Act  of  the  Legislature.  So  we  answer  here,  the  provi- 
sions of  this  law  were  completed  by  the  Act  of  the  Legislature. 
The  learned  Judge,  who  delivered  the  opinion  in  that  case, 
does  not  admit  the  distinction  taken  by  the  Courts  of  the  other 
States,  between  laws  which  are  to  take  effect  upon  the  affirma- 
tive vote  of  the  people  and  those  which  are  in  form  to  become 
laws  upon  an  affirmative  vote  of  the  people. 

The  penal  statutes  of  this  State  leave  it  to  the  Judge,  upon 
conviction,  in  some  felonies,  to  prescribe  the  term  of  imprison- 
ment. For  instance,  upon  a  conviction  of  murder  in  the  second 
degree,  the  Judge  may  impose  punishment  of  imprisonment  in  the 
penitentiary  for  a  term  of  not  less  than  ten  years,  or  he  may  ex- 
tend the  term  to  imprisonment  for  life.  Within  those  limits  the 
Judge  has  the  discretion  of  fixing  the  amount  of  the  punish- 


[     24    ] 

ment  to  be  attached  to  the  offense.  And  so  with  other  offenses'. 
Now,  is  the  exercise  of  that  discretion  an  exercise  of  the  law- 
making power?  We  answer  no;  the  Legislature  is  the  tribunal 
that  must  determine  what  i^unishment  shall  be  affixed  to  the 
commission  of  crime,  and  no  crime  can  be  punished  except 
under  the  authority  and  sanction  of  some  legislative  Act.  But 
it  does  not  follow  that  because  the  punishment  is  not  precisely 
fixed  there  is  a  delegation  of  the  law-making  power.  The 
action  of  the  Judge  is  under  the  law,  by  authority  of  law,  and 
the  sentence  which  he  imposes  is  the  sentence  of  the  law,  and 
not  of  the  Judge.  So  in  the  matter  of  taxation,  the  whole 
power  vests  in  the  Legislature.  Every  tax  must  be  levied, 
as  every  crime  must  be  punished,  under  legislative  sanction. 
And  this  principle,  when  applied  to  taxation,  is  true  of  local  as 
well  as  of  general  taxation.  The  authority  to  levy  a  tax,  either 
for  State  or  for  local  purposes,  must  be  found  in  some  Act  of 
the  Legislature.  But  it  is  not  necessary  that  all  the  details 
should  be  found  in  the  law.  Something  must,  in  the  very 
nature  of  things,  be  left  to  the  discretion  of  the  authorities 
acting  under  the  law. 

The  SujDreme  Court  of  Pennsylvania,  at  a  very  earl}'  day, 
took  extreme  grounds  upon  the  question  of  the  delegation  of 
the  law-making  power,  and  held  that  a  distinction  might  rest 
merely  ujDon  the  form  of  a  statute.  The  only  case  however 
to  that  effect  was  never  recognized  as  authority  even  in  that 
State,  and,  in  the  later  cases,  has  been  expressly  overruled. 
On  the  21st  of  March,  1873,  in  the  Appeal  of  Lock,  reported 
in  the  "Legal  Intelligencer,"  page  93,  the  Court  upon  this 
topic  observe  :  "  What  is  more  common  than  to  appoint 
commissioners  under  a  law  to  determine  things  upon  which 
the  Act  is  to  operate  one  way  or  the  other?  And  has 
this  power  ever  been  questioned?"  The  Court  say  not.  Yet 
the  section  under  consideration  in  these  cases  simply  ap- 
points a  Board  to  determine  a  thing  upon  the  decision  of  which 
the  law  fixes  its  judgment.  The  Board  determines  what  the 
deficiency  will  be,  what  the  expense  of  collecting  the  revenue 
will  be — questions  which  the  Legislature  could  not  determine; 
but  the  Legislature  has  determined  what  the  law  shall  be  after 
these  facts  are  ascertained.     The  Supreme  Court  of  Pennsyl- 


[     25     ] 

vania,  in  the  same  case,  say  that  tlie  true  distinction  is  this: 
"  The  Legislature  cannot  delegate  its  power  to  make  a  law,  but 
it  can  delegate  the  power  to  determine  some  fact  or  state  of 
things  upon  which  the  law  intends  to  make  its  own  action 
depend."  So,  here,  the  Legislature  has  not  delegated  its  power 
to  make  a  law;  but  it  has  made  a  law  delegating  the  power  to 
determine  some  fact,  or  state  of  facts,  upon  which  tlie  law 
makes,  or  intends  to  make,  its  own  action  depend. 

In  the  case  of  Bull  v.  Reed,  13  Grattan,  p.  86,  in  which  the 
opinion  was  delivered  by  Judge  Lee,  one  of  the  ablest  of  the 
modern  Virginia  Judges,  the  cases  upon  this  subject  are  collated 
and  reviewed,  and  he  arrives  at  the  result  stated  in  llobart  v. 
The  Supervisors  of  Butte  County,  and  in  the  Appeal  of  Lock, 
supra. 

The  office  the  Legislature  has  to  perform  is  fully  accom- 
plished when  it  has  made  the  law;  when  it  has  established  the 
general  rule  of  conduct  under  which  the  officers  arc  to  act. 
The  fact  that  a  discretion  as  to  minor  matters  is  left  to  proper 
agents,  in  cases  where  the  Legislature  cannot  as  well  exercise 
such  discretion,  does  not  constitute  a  delegation  of  the  law- 
making power. 

Legislative  Acts,  declaring  in  effect  that  the  people  of  a- county 
may  by  vote  determine  the  location  of  a  county  seat,  have  fre- 
quently been  before  the  Courts  upon  the  question  of  their 
validity — whether  or  not  the  Acts  delegated  to  the  people  legis- 
lative power  which  the  Legislature  alone  could  exercise.  But 
in  every  case  of  that  character,  cited  by  respondents,  a  solution 
of  the  question  turned  upon  the  point  whether  the  language 
of  the  Act — the  words  enrolled  upon  the  parchment — became 
operative  by  reason  of  the  legislative  action  had  thereon  or  by 
reason  of  the  action  of  the  people  of  the  county;  whether,  in 
point  of  fact,  the  Legislature  enacted  the  words  of  the  Act 
or  delegated  that  power  to  the  people. 

No  such  question  can  arise  in  this  case,  for  it  is  admitted  that 
the  section  under  consideration  was,  both  in  form  an  1  in  sub- 
stance, a  law,  when  the  legislative  action  thereon  ceased.  It  is 
neither  in  form  nor  in    substance  a  delegation  of  legislative 


[     26     ] 

power.  There  is  a  delegation  of  power  to  a  tribunal  to  de- 
termine facts — not  of  a  power  to  make  laws.  That  the  Legis- 
lature may  constitutionally  exercise  this  power  does  not  admit 
of  serious  doubt. 

In  Grant  v.  Courier,  24  Barb.,  p.  241,  the  Court  say: 

"  Where  a  duty  in  respect  to  a  particular  thing  is  enjoined 
by  the  Constitution  upon  the  legislative  discretion,  even  though 
the  authority  may  have  been  previously  exercised  b}^  the  Leg- 
islature, no  limitation  is  thereby  set  to  legislative  power,  nor 
can  an  intention  be  implied  on  the  part  of  the  framers  of  the 
Constitution,  or  the  people  who  adopted  it,  to  restrict  the  law- 
making department  in  the  manner  of  discharging  the  duty. 
No  just  or  logical  implication  can  arise  that,  in  the  section 
under  review,  it  was  intended  to  restrain  the  Legislature,  when 
dealing  with  the  subject  of  municijoal  power,  from  conferring 
upon  municipal  governments  new  and  enlarged  powers  in  re- 
spect to  taxation  and  the  creation  of  debts,  if,  in  its  wisdom, 
good  government  and  the  welfare  and  interests  of  the  commu- 
nity to  be  affected  were  to  be  thereby  promoted.  There  is  no 
force  in  the  ground  that  the  Act  is  unconstitutional  for  the  rea- 
son that  its  adoption  as  a  law  was  made  to  depend  upon  the 
consent  being  first  obtained  of  two  thirds  of  the  taxpayers  rep- 
resenting two  thirds  of  the  taxable  property  of  the  town.  This 
is  not  true,  in  fact,  as  will  aj^pear  from  an  examination  of  the 
statute.  Its  adoption  as  a  law  was  not  made  to  depend  upon 
the  will  of  any  person  or  body  other  than  the  Legislature.  No 
extraneous  power,  unrecognized  by  the  Constitution,  was  called 
in  or  invoked  to  give  it  being  as  a  law.  It  was  the  emanation 
exclusively  of  the  legislative  will;  and  was  perfect,  final,  and 
decisive  in  all  its  parts  when  it  came  from  the  hands  of  the  law- 
making department." 

This  decision  was  given  in  support  of  the  constitutionality  of 
an  Act  of  the  Legislature  of  New  York,  authorizing  the  towns 
in  the  counties  through  which  the  Albany  and  Susquehanna 
Eailroad  is  located,  to  borrow  money,  and  subscribe  for  and 
purchase  the  stock  of  the  company,  with  the  view  of  aiding  the 
work.  In  the  case  of  Clark  v.  The  City  of  Bochester,  13  How., 
P.  E.,  p.  204,  the  Court  had  held  that  where  an  Act  was  passed  not 


[     27     ] 

to  become  a  law  until  the  majorit}''  of  the  electors  in  the  State 
had  voted  for  it,  there  was  a  delegation  of  legislative  authority, 
because  the  law  was  not  made  by  the  Legislature  but  was  left 
to  the  votes  of  the  people.      In  the  case  of  Grant  v.  Courier, 
supra,  the  Court  say  the  law  then  under  consideration  was  the 
"emanation  exclusively  of  the  legislative  will,"  and  no  extra- 
neous power  had  been  called  in.     Now,  in  regard  to  the  section 
under  consideration  by  this  Court,  has  any  extraneous  power 
been  invoked?     AVas  not  the  section  final  and  complete  when  it 
left  the  Legislature?     Even  admit  the  distinction   between  an 
Act  which    the    Legislature    passes,   absolutcl}',  and   an  Act 
passed    subject   to   ratification  or   rejection    by  a  vote  of  the 
people,  still    the    statute    we    are  now  considering   is  entirely 
free  from  objection  on  such  grounds.     Could  the  Legislature 
have  done  anything   further  to  perfect  tliis  Act?      Has   any 
other   body  or  tribunal  j^ower  to   alter  it,  to  change  its  pro- 
visions, or   to  prevent  its    taking   effect?      Certainly  not.     It 
possesses  every  element  of  a  law.     It  is  a  solemn  expression 
of  the  will  of  the  legislative  power  of  the  State.     I  will  read 
again  from  the  same  volume,  at  page  475,  in  the  case  of  Clark  v. 
The  City  of  Rochester,  where  Justice  Smith,  citing  approvingly 
the    remarks   of   Judge    Marshall,  in  Slack  v.    The  MaysvlUe 
and  Lexington   Railroad  Compajiy,  9  Monroe's  Reports,  p.  52G, 
observes: 

"  It  is  not  essential  to  the  character  and  force  of  a  law  that 
the  legislative  enactment  should  itself  command  to  be  done 
everything  for  which  it  provides.  The  legislative  power  to 
command  a  particular  thing  to  be  done  includes  the  power  to 
authorize  it  to  be  done.  The  act  done  under  authority  con- 
ferred b}'  the  Legislature  is  as  precisely  legal  and  valid  as  if 
done  in  obedience  to  a  legislative  command.  So  far  as  such 
statute  confers  authority  and  discretion,  it  is  as  obligatory  from 
the  first  as  the  legislative  power  could  make  it;  and,  although 
its  further  practical  efficiency  nuay  depend  upon  the  discretion- 
ary act  of  some  other  body  or  individual,  it  is  not  derived  from 
that,  but  from  the  will  of  the  Legislature  which  authorized  the 
act  and  prescribed  the  consequences." 

Now  this  is  the  XGry  doctrine  for  which  we  are  contending. 


[     28     ] 

It  is  within  the  discretion — the  power  of  the  Court — to  impose 
a  sentence  of  imprisonment  in  the  State  Prison  or  to  visit  by 
fine  and  imprisonment  the  same  offense.  That  depends  upon 
the  discretionary  act  of  the  Court.  It  was  derived,  originally, 
from  the  will  of  the  Legislature,  which  by  law  authorizes  the 
exercise  of  this  discretion.  Fui"ther  on,  in  the  last  case  I  have 
referred  to  (at  page  502),  Justice  Johnson  says  of  the  statute 
then  under  consideration: 

"  By  its  own  terms  it  could  never  have  the  force  or  authority 
of  law  until  it  had  received  the  assent  of  a  majoi'ity  of  the  votes 
of  the  voters  at  an  election.      So,  here,  it  was   the    sections 
themselves  which  were  submitted  for  approval  or  disapproval, 
and  it  was  a  favorable  vote  alone  which  could  give  them  any 
vitality  or  force.     The  limitation  Avas  directly  upon  the  grant 
of  power  and  not  upon  its  exercise  after  the  grant  had  taken 
effect  and  vested  the  power  in  the  Common  Council.     The  vote 
determined  whether  there  should  or  should  not  be  any  grant. 
And  it  was  in  reference  to  this  precise  condition  of  the  provi- 
sions of  a  statute,  emanating  from  the  Legislature,  that  the 
Court  of  Appeals   said,  in   Barto  v.   Slmrod,  i  Selden,  p.  483: 
'  They  were  not  law,  or  to  become  law,  until  they  had  received 
a  majority  of  the  votes  of  the  people  at  a  general  election  in 
their  favor,  nor  unless  they  received  such  majority.     It  results, 
therefore,  unavoidably,  from  the  terms  of  the  Act  itself,  that  it 
was  the  popular  vote  which  made  the  law.      The  Legislature 
prepared  the  plan  or  project  and  submitted  it  to  the  people  to 
be  passed  or  rejected.     The  Legislature  had  no  power  to  make 
such  submission,  nor  had  the  jDeople  any  power  to  bind  each 
other  by  acting  upon  it.'     And  Chief  Justice  Euggles,  in  his 
opinion,  even  goes  so  far  as  to  sa}^  that  if  the  Act  had,  by  its 
terms,  been  declared  to  be  law  from  the  time  of  its  passage,  to 
take  effect  in  case  it  should  receive  a  majority  of  votes  in  its 
favor,  it  would  nevertheless   have   been  invalid,  because  such 
vote  would  have  involved  the  expediency  of  the  law,  and  is  not 
such  an  event  as  a  statute  can   be  made  to  take  effect  upon, 
according  to  the  meaning  and  intent  of  the  Constitution." 

By  the  section  under  consideration  here,  power  to  j^ass  upon 
the  expediency  of  the  law  is  given  to  no  one. 


[     29     ] 

"It  is  not  denied,"  says  the  learned  Chief  Justice,  "that  a 
valid  statute  may  be  passed  to  take  effect  upon  the  happening 
of  some  event,  certain  or  uncertain.  But  such  a  statute,  when 
it  comes  from  the  hands  of  the  Legislature,  must  be  law  in 
presenti  to  take  effect  in  futuro.  It  is  argued  that  these  sections 
so  far  took  effect  when  they  came  from  the  hands  of  the  Legis- 
lature as  to  be  in  some  sense  law  in  presenti.  But  this,  I  appre- 
hend, cannot  be  so.  When  the  Legislature  said  they  should  not 
take  effect,  except  in  a  certain  contingency,  and  should  take 
effect  when  that  happened,  they  said  the  sections  should  not  be 
law  unless  the  event  happened.  Until  then,  it  was  no  rule  for 
the  government  of  any  one.  No  one  could  violate  it,  nor  ac- 
quire any  rights,  or  exercise  any  authority  under  it.  It  vested 
no  power  to  be  exercised,  and  no  one  could  do  any  valid  or 
binding  act  under  it.  How,  then,  can  it  be  deemed  a  law  iu 
any  sense?  A  law  is  a  rule  of  conduct,  imposing  duties  and 
obligations  upon  the  citizen  which  is  capable  of  being  violated, 
and  under  which  he  may  acquire  and  enjoy  rights.  Suppose 
this  same  provision  had  applied  to  the  whole  amended  charter, 
would  it  have  been  law  until  the  election  had  been  held  and  the 
certificate  of  a  vote  of  approval  filed?  Certainly  not.  The  old 
charter  would  have  remained  in  full  force,  and  been  the  sole 
and  exclusive  law  of  the  cori^oration  until  the  happening  of  that 
event.  Indeed,  a  statute  passed  to  take  effect  at  a  future  day 
is  not  law  in  presenti  in  any  just  sense  in  which  the  term  law 
can  be  used.  It  is  an  enactment  which  is  to  become  law  at  the 
day  appointed,  but  in  which  all  vitality  is  suspended,  or  rather 
from  which  it  is  withheld,  by  the  power  which  created  it,  until 
the  appointed  time." 

Again,  he  says: 

"It  is  urged  that  laws  passed  for  the  government  of  the  in- 
habitants of  a  village  or  city  stand  upon  a  different  footing  from 
those  passed  for  the  government  of  the  whole  peeple  of  the 
State,  and  that  a  submission  to  the  electors  which  would  render 
a  general  law  void  and  of  no  effect  would  not  affect  injuriously 
a  local  law.  But  I  am  unable  to  see  any  ground  on  which 
such  a  distinction  can  possibly  rest.  It  is  simply  a  question  of 
power,  in  the   Legislature,  under   the   Constitution.     No   one 


[     30     ] 

pretends  that  the  Constitution  has,  by  any  terms,  prohibited  it 
in  the  one  case  and  allowed  it  in  the  other.  The  power  of  the 
Legislature  is  manifestly  the  same  in  both  cases.  If  it  has  no 
power  under  the  Constitution  to  submit  a  law  for  approval  or 
disapproval  to  the  electors  in  the  one  case,  it  has  not  in  the 
other;  and  if  the  electors  have  no  power  to  bind  each  other  by 
acting  upon  the  submission  in  the  one  case,  they  have  not  in  the 
other.  The  legislative  power  of  the  State  is  vested  in  the  Sen- 
ate and  Assembly  for  the  purpose  of  enacting  local  as  well  as 
general  laws,  and  must  be  exercised  in  the  same  manner  in 
either  case;  and  anything  in  form  or  substance  which  would 
avoid  one  would  the  other,  in  all  cases  where  the  Constitution 
has  not  prescribed  a  different  rule.  The  power  must  be  exer- 
cised as  fully  and  completely  in  a  statute  relating  to  the  con- 
struction of  a  railroad  by  a  corporation,  as  in  one  relating  to 
common  schools  and  general  education.  But  for  this  decision 
of  the  Court  of  last  resort,  in  Barto  v.  Himrod,  I  should  have 
no  doubt  that  it  was  not  only  perfectly  competent  for  the  Leg- 
islature to  pass  a  valid  law  in  this  form,  but  that  it  was  highly 
expedient  and  proper  in  that  body  to  consult  the  electors  on  a 
question  like  this  before  delivering  them  over,  bound,  to  the 
Common  Council." 

He  follows  the  rule  laid  down  by  the  Court  of  Appeals,  but 
does  not  approve  it.     Further  on,  he  says: 

<'  I  have  bestowed  no  inconsiderable  reflection  upon  this  sub- 
ject since  this  novel  theory  was  first  broached — that  the  submis- 
sion of  a  statute,  enacted  In  due  form  by  the  Legislature,  to 
the  people  for  acceptance  or  rejection  in  some  prescribed  form, 
rendered  it  a  nullity.  Without  being  able  to  comprehend, 
clearly,  the  principles  upon  which  it  has  been  held  to  rest,  I 
have  not  been  able  to  see  at  all  why  it  is  that  the  law-making 
body,  in  the  absence  of  all  constitutional  restrictions,  may  not, 
in  the  plenitude  of  its  sovereignty,  properly  exercise  its  power, 
subject  to  such  checks  and  limitations  as  it  may  see  fit  to  im- 
pose. And  this  is  virtually  conceded  when  it  is  admitted  that 
a  valid  law  may  be  passed  to  take  effect  upon  the  happening  of 
a  future  contingent  event.  The  legislative  sovereignty  is  just 
as  fully  and  completely  exercised  by  an  enactment  in  that  form 


[     31     ] 

as  in  any  otliei*.  It  is  of  the  very  nature  and  essence  of  sov- 
ereignty to  exercise  its  power  absolutel}^  or  conditionally,  as  it 
may  choose.  It  may  enact  absolutely,  and  bind  the  elector 
even  against  his  will  and  in  known  and  intentional  hostility 
to  it;  or,  in  accordance  with  his  wishes  and  subject  to  his  ap- 
proval and  acceptance.  It  is  by  no  means  essential  to  the  full 
and  proper  exercise  of  sovereign  power  that  it  should  be  exer- 
cised in  opposition  to  tlie  will  of  the  governed.  The  sover- 
eignty is  quite  as  full}",  and,  indeed,  more  strikingl}'-  manifested, 
when  exercised  in  accordance  with  the  elector's  will,  and  sub- 
ject to  his  approval  and  acceptance.  The  requirement  of  the 
approval  or  assent  of  the  elector  as  the  condition  of  an  enact- 
ment taking  effect  and  becoming  operative  as  a  law,  is  no  dele- 
gation of  legislative  power  to  the  electors,  as  seems  to  have 
been  supposed.  And  the  elector's  act  of  approval,  b}-  his  vote, 
has  not  the  quality  of,  nor  does  it  purport  to  be,  an  act  of  sov- 
ereignty. It  is  an  act  simply  of  assent  or  obedience,  and  serves 
only  to  remove  the  check  or  limitation  to  the  full  and  free 
operation  of  the  supreme  will.  It  operates  as  a  secondary 
means,  simplj^,  devised  and  employed  by  the  sovereign  to  ex- 
press his  own  will  and  render  it  absolute.  And  it  is  the  sov- 
ereign will  embodied  in  the  enactment,  and  not  the  secondary 
act  of  approval  by  the  elector,  which  makes  the  law  in  such  a 
case.  For  instance:  A.  and  B.  enter  into  a  contract  which  is 
full  and  complete  in  all  its  parts  and  provisions,  and  signed  by 
the  parties.  But  in  it  they  insert  a  condition  or  proviso  that 
it  shall  not  take  effect  and  become  binding  until  it  has  been  sub- 
mitted to  C,  and  he  shall  have  indorsed  his  approval  u])on  it, 
or  his  opinion  that  it  is  in  due  form  or  not  contrary  to  law.  It 
is  no  contract  until  it  has  C.'s  indorsement,  and  3'et  C.  does  not 
make  it,  nor  is  any  power  delegated  to  him  to  bind  the  parties 
by  contract.  It  is  still  the  sole  act  of  A.  and  B.,  and  it  is  their 
will  which  binds,  and  C.  acts  only  secondarily  as  an  instrument 
or  adviser.  And  so  I  conceive  that  were  an  Act  passed  by  the 
Legislature,  with  a  proviso  that  it  should  not  take  effect  and 
become  a  law  until  it  had  been  submitted  to  the  Court  of  Ap- 
peals, and  the  requisite  number  of  Judges  had  concurred  in  and 
filed  an  opinion  that  its  provisions  were  not  in  conflict  with  any 
provisions  of  the  Constitution,  the  Court  of  Appeals  by  this  act 


[     32     ] 

would  not  make  the  law,  cor  would  any  legislative  power  be 
delegated  to  them  in  such  a  case.  Their  act  would  simply  ful- 
fill a  condition,  and  remove  a  check,  and  it  would  still  be  the 
legislative  will  which  had  employed  these  secondary  means 
that  would  create  and  constitute  the  law.  This  illustrates,  in 
my  judgment,  the  clear  and  plain  distinction  between  a  check 
devised  and  imposed  by  the  supreme  will,  upon  the  operation  of 
its  own  decrees  or  enactments,  and  the  delegation  of  sovereign 
power.  And  it  is  by  overlooking  this  distinction  that  Acts  like 
the  one  under  consideration  have  been  held  to  be  invalid." 

The  learned  Judge  then  considers  the  theory  of  the  opposite 
side: 

"  The  logic  of  the  opposite  theory  is  exceedingly  brief  It  is 
substantially  this:  By  the  terms  of  the  enactment  it  is  no  law 
without  the  required  assent;  therefore  the  act  of  yielding 
assent  creates  the  law  and  operates  as  the  law-making  power. 
This  may  seem  plausible,  but  it  must  be  seen  in  the  end  to  be 
utterly  delusive  and  unsound.  The  assent  or  dissent  is  a  sub- 
ordinate, and  not  a  sovereign,  act,  and,  in  its  nature,  char- 
acter, and  office,  is  precisely  like  the  executive  sanction,  or  neg- 
ative, which  is  in  no  sense  the  exercise  of  law-making  power. 
With  this  diftcrence,  however:  that  in  the  one  case  the  check 
on  limitation  is  devised  and  imposed  by  the  authors  of  the  Con- 
stitution— the  ultimate  sovereigns — and  in  the  other  by  the 
law-making  power,  upon  its  own  acts,  in  the  exercise  of  its  un- 
restrained sovereignty.  And  so,  too,  in  my  judgment,  it  is  no 
evidence  whatever  that  the  Legislature  did  not  pass  upon  the 
expediency  of  a  statute,  or  exercise  the  sovereign  judgment  in 
reference  to  its  expediency,  because  they  ordained  that  it 
should  not  take  effect  without  its  receiving  the  assent  of  a 
majority  of  the  electors." 

The  cases  from  which  I  have  read  involved  the  question 
whether  a  statute  passed  to  take  effect  upon  a  vote  of  the  people 
was  a  perfect  law  or  not.  The  law  we  have  before  us  is  not 
such  a  statute.  It  is  not  amenable  to  the  objections  urged  in 
those  cases.  If  there  is  no  delegation  of  the  law-making 
power,  in  the  case  of  a  law  which  cannot  take  effect  at  all  for 


[     33     ] 

any  purpose  but  upon  the  huppening  of  a  certain  contingency, 
how  can  there  be  a  delegation  of  legislative  power  in  tliis 
statute,  which,  at  most,  merely  gives  discretion  to  certain 
agents  in  conipnting  the  possible  delinquency  in  the  collec- 
tion of  the  taxes? 

Mr.  Justice  Crockett — Does  jonv  argument  go  to  the  extent 
of  holding  that  if  the  Legislature  should  delegate  the  power 
of  fixing  the  rate  of  taxation  to  the  Governor,  that  the  Act 
would   be  constitutional? 

Mr.  Haymond — Yes,  sir;  it  would  not  be  a  delegation  of  the 
power  to  make  a  law.  The  Legislature  itself  makes  the  law. 
For  instance,  it  is  perfectly  competent  for  the  Legislature  to 
declare,  by  law,  that  in  criminal  cases  the  jury  may,  by  its  ver- 
dict, determine  whether  the  prisoner,  if  convicted,  shall,  for  a 
given  offence,  be  punished  either  bj''  death  or  imprisonment  in 
the  State  Prison.  This  has  been  done  in  almost  every  State 
in  the  Union.  But,  if  the  Legislature  should  declare  that 
"The  Courts  shall,  by  a  rule,  determine  the  kind  of  punish- 
ment to  be  affixed  to  a  crime  "  it  would  be  a  different  thin<z:> 
That  would  be  a  delegation  of  legislative  power,  for  it  would 
be  an  attempt  to  authorize  the  Courts  to  make  a  law.  The  one 
is  the  exercise  of  the  power  in  its  full  sense;  and  the  other, 
merely  the  exercise  of  a  subordinate  act,  which,  if  it  is  of  the 
nature  of  legislative  power,  is  but  remotely  so. 

In  their  petition  for  rehearing,  respondents  cite,  as  authority 
in  their  behalf,  a  recent  decision  of  the  Court  of  Ap^icals,  New 
York  {Appeal  of  Locke  et  al.,  Legal  Intelligencer,  1873,  p. 
931);  but  that  case,  so  far  from  sustaining  the  views  of  re- 
spondent, is,  with  its  attendant  facts  properly  considered,  in 
favor  of  the  very  construction  which  we  contend  for.  There 
is  in  our  Constitution  no  limitation  upon  the  power  of  the  Leg- 
islature to  impose  taxes,  except  the  limitation  in  the  section 
quoted;  but  in  the  New  York  Constitution  it  is  provided  that 
the  Legislature  shall  not  pass  any  Act  by  which  taxes  are  to  be 
raised,  unless  the  object  for  which  the  taxes  are  to  be  raised 
is  stated  in,  and  the  amount  of  the  tax  is  fixed  by,  the  Act. 


[     34     ] 

According  to  the  theory  of  the  respondents  in  this  case  the  in- 
sertion of  that  provision  in  the  New  York  Constitution  was  an 
idle  act.  It  conkl,  according  to  their  theory,  have  no  force  or 
effect  whatever;  hut  it  is  evident  that  the  men  who  framed  the 
New  York  Constitution  were  of  the  opinion  that,  unless  such  a 
provision  was  inserted  in  the  Constitution,  the  Legislature 
would  have  power  to  pass  an  Act  to  raise  revenue,  without 
either  stating  the  object  for  which  it  was  to  be  raised  or  fixing 
the  amount  of  the  tax.  State  Constitutions  are  limitations  upon 
the  power  of  Legislatures,  and  not  grants  of  power  to  those 
bodies.  The  Legislature  may  do  any  act  which  that  Constitu- 
tion docs  not  forbid,  either  by  expressed  terms  or  necessary 
intendment.  The  Legislature  of  New  York  passed  an  Act, 
which  the  Court  of  Appeals  of  that  State  sa}^,  neither  states 
the  object  for  which  the  tax  is  levied  nor  fixes  the  rate.  That 
law  the  Court  declares  unconstitutional,  but  declares  it  uncon- 
stitutional solely  upon  the  ground  that  it  conflicts  with  the  pro- 
vision of  the  New  York  Constitution  referred  to — one  for 
which  no  corresponding  provision  in  ours  can  be  found.  If  it 
were  otherwise — if  the  Court  of  Appeals  of  New  York  had 
decided  the  Yery  question  presented  in  these  cases — that  deci- 
sion is  not  binding  upon  this  Court.  For  aught  we  know  counsel 
may  be  standing  in  the  Court  of  Appeals,  in  the  State  of  New 
York,  upon  a  reargument  of  that  case,  and  contending  that  the 
Court  should  depart  from  the  rule  which  it  established,  and 
follow  the  rule  of  the  California  cases.  The  effect  which  is  to 
be  given  to  the  decision  of  the  Court  of  a  sister  State  depends 
upon  very  manj^  considerations:  the  ability  of  the  Judge  who 
delivered  it;  the  reasoning  by  which  he  sustains  the  opinion; 
the  investigation  which  he  has  given  to  the  question.  If  we 
find  that  an  opinion  has  been  delivered  without  a  thorough 
examination  of  the  question  presented,  it  is  no  authority;  it  can 
be  no  authority  in  a  Court  of  a  sister  State.  An  examination 
of  the  opinion  in  question  will  show  that  the  veiy  strongest  ar- 
guments in  favor  of  the  conclusion  at  which  the  Judges  arrived 
were  based  upon  an  entire  misapprehension  of  the  legislation  of 
their  own  State.  The  Judge,  who  writes  the  opinion  deliber- 
ately, states  that  it  is  the  first  law  of  that  kind  ever  passed  in 
that  State,  while  the  statute  book  of  a  single  session  of  the 


[     3o     ] 

State  Legiylaiurc  sliows  no  less  tlian  six  Acts;  and,  so  far  as 
we  have  been  able  to  find,  j-iinning  through  the  laws  ot"  that 
State,  the  enactments  of  that  character  are  without  inunber. 
But  the  whole  answer  to  this  opinion,  when  it  is  urged  as  au- 
thority here,  is  th:it  it  was  made  in  exposition  of  a  clause  in- 
serted in  the  Constitution  of  New  York  in  eighteen  hundred 
and  forty-six — an  express  litnitation  upon  the  power  of  the 
Legislature — and  that  there  is  no  pi'ovision  in  our  Constitu- 
tion similar  in  ciiaracter.  In  the  absence  of  such  a  constitu- 
tional provision  in  New  York,  the  Court  of  Appeals  must  have 
held,  upon  well  known  rules  of  constitutional  construction, 
that  the  Legislature  had  the  power  to  pass  an  Act  to  raise 
revenue,  without  either  stating  the  object  for  which  it  was  to 
be  raised  or  fixing  the  rate. 

THE  POWER  TO  LEVY  A  TAX  MAY  BE  DELEGATED. 

But,  may  it  please  the  Court,  much  has  been  said  upon  the 
question  of  delegation  of  the  legislative  power.  The  power  of 
taxation  is  not  strictly  a  legislative  jDower.  The  power  in  Eng- 
land was  exercised  by  the  Crown,  and  the  Judges  of  England 
agreed,  that  under  the  English  Constitution  the  power  was 
vested  in  the  Crown.  All  powers  which  the  Legislature  exer- 
cise are  sovereign  powers,  but  it  exercises  many  powers  that 
are  not  purely  legislative.  It  exercises  all  the  powers  which 
in  England  were  vested  in  the  Crown  and  in  the  Parliament, 
except  such  powers  as  are  incompatible  with  the  theory  of  a 
republican  form  of  government,  and  except  such  powers  as 
have  been  vested  in  the  Federal  Government,  or  by  the  State 
Constitution  in  other  departments  of  the  Government,  or  have 
been  reserved  to  the  people  by  that  instrument.  It  has  the 
power  to  create  corporations;  which  never,  in  England,  was 
considered,  before  the  Kevolution,  a  legislative  power.  It  exer- 
cises the  right  of  eminent  domain,  and  many  other  powers 
which  are  not  legislative  in  their  character;  and  while  it  may 
be  true  that  the  law-making  j^ower  cannot  be  delegated,  yet  it 
has  been  ably  argued  that  the  powers  not  purely  legislative 
may  be  delegated,  and  we  know  as  a  fact,  that  they  have  been 
delegated  since  the  formation  of  the  first  State  Governments  in 
America.     The  Chief  Justice,  in  his  dissenting  opinion  in  this 


[     36     ] 

case,  declares  that  the  taxing  power  must  be  exercised  by  the 
Legislature,  and  can  in  no  event  be  delegated.  This  declara- 
tion is  at  war  with  the  histor}',  not  only  of  our  own  State  Gov- 
ernment from  its  first  organization,  but  at  war  with  the  history 
of  every  State  Government  in  the  Union.  The  fact  is,  the 
taxing  power  has  always  been  delegated.  In  this  State,  the 
Legislature  has  constantly  delegated  the  power.  Municipal 
corporations  are  created  with  power  to  tax.  School  districts 
and  road  districts  are  created  with  the  power  to  tax.  In  each 
instance,  the  tax  is  not  fixed  by  legislative  enactment.  In  some 
cases,  it  is  true,  there  is  a  limitation  upon  the  power,  but  in 
others,  there  are  none.  Boards  of  Supervisors  have  had  the 
right,  in  some  counties  of  the  State,  to  levy  any  rate  of  taxa- 
tion for  county  purposes  that  they  saw  proper.  The  Common 
Councils  of  cities  have  exercised  the  same  power.  The  Trus- 
tees of  school  districts  and  of  road  districts  have  always  exer- 
cised this  power.  And  yet  Mr.  Coolej^  says,  "it  is  as  true  of 
the  political  divisions  of  the  State,  as  it  is  of  the  State  at  large, 
that  legislative  authority  must  be  shown  for  every  levy  of 
taxes."     (Cooley's  Const.  Lim.,  p.  518.) 

As  an  answer  to  these  facts,  Ave  are  told  that  the  Constitu- 
tion gives  to  the  Legislature  the  power  to  create  municipal  coi'- 
porations,  and  to  divide  a  State  into  counties.  In  reply,  we  say 
the  Constitution  gives  to  the  Legislature  no  power  whatever. 
It  is  a  limitation  upon  the  power  of  the  Legislature.  The 
Legislature  maj'  do  any  thing  which  the  Constitution  does  not 
prohibit.  The  limitations  of  the  Constitution  upon  this  subject 
are  found,  first,  in  Article  IV,  section  31,  which  provides  that 
corporations  may  be  formed  under  general  laws,  but  shall  not 
be  created  by  special  Act,  except  for  municipal  purposes.  Sec- 
tion 37  of  the  same  Article,  makes  it  the  duty  of  the  Legisla- 
ture to  provide  for  the  organization  of  cities  and  incorporating 
of  villages,  and  to  restrict  their  power  of  taxation,  etc.  Section 
4  of  Article  XI,  provides  that  the  Legislature  shall  establish  a 
system  of  county  and  town  governments,  which  shall  be  as 
nearly  uniform  as  practicable  through  the  State. 

These  are  limitations  upon  the  power  of  the  Legislature. 
Without  any  mention  in  the  Constitution,  the  Legislature 
would  have  the   power   to  establish    corporations    by  special 


[     37     ] 

enactment,  ov  under  ii;enei':il  laws,  tlie  jwwcr  to  establish  county 
and  town  govcrnmetits;  so  that  none  of  this  power  comes  from 
the  Constitution.  The  Constitution  renders  it  obligatory  upon 
the  Legislature  to  form  corporations  under  general  laws.  It 
restricts  the  power  which  they  otlierwise  would  htive  of  forming 
them  under  special  laws.  It  makes  it  obligatory  upon  the  Legis- 
lature to  establish  a  system  of  county  and  town  governments, 
otherwise  the  Legislature  might  or  might  not,  in  its  discretion, 
establish  such  governments.  80  that  no  argument  can  be  made 
against  the  power  of  the  Legislature  to  levy  taxes  in  a  particu- 
lar way  for  general  and  State  purposes,  that  will  not  apj)ly  with 
equal  force  to  the  levying  of  taxes  for  local  purposes. 

Id  the  case  of  Bull  v.  Read,  13  Grattan,  p.  86,  before  referred 
to,  Mr.  Justice  Lee  cites  the  opinion  of  one  of  the  earliest  and 
most  distinguished  of  the  Virginia  Judges — Judge  Pendleton — 
affirming  the  power  of  the  Legislature  to  delegate  the  taxing 
power. 

The  learned  counsel  for  respondents  have  dwelt  with  delight 
upon  the  debates  in  the  Convention  which  framed  our  State 
Constitution.  They  have  sought  in  those  debates  an  exposi- 
tion of  the  terms  of  that  instrument.  I  have  attempted  to 
show  how  little  importance  can  be  attached  to  the  published 
debates  in  a  body  of  that  character;  but  there  is  much  weight 
to  be  attached  to  the  action  of  a  whole  people  under  a  Consti- 
tution; to  the  construction  placed  upon  it  after  its  enactment 
by  those  who  were  its  cotemporaries.  Courts  have  constantly 
recognized  these  as  elements  to  be  taken  into  consideration 
when  we  are  endeavoring  to  ascertain  the  intention  of  that 
instrument.  The  first  Legislature  of  this  State  met  within 
four  months  after  the  adjournment  of  the  Constitutional  Con- 
vention. That  very  Legislature — composed  in  part  of  some 
of  the  most  eminent  men  who  were  in  the  Convention;  com- 
posed almost  entirely  of  men  who  were  here  at  the  time  of 
the  adoption  of  the  Constitution — saw  no  difficult}'  in  the  way 
of  the  delegation  of  the  taxing  power.  They  created  munici- 
pal corporations,  and  delegated  to  them  the  power  and  au- 
thority to  levy  taxes,  and  no  one  has  ever  questioned  the  right. 
Thepeojile  have  acquiesced  in  it;  the  Courts  liave  affirmed  and 
reaffirmed  the  power.     Now,  we  say,  that  twenty  years  of  leg- 


[     38     ] 

islative  construction;  twenty  years  of  acquiescence  in  that  con- 
struction by  the  people  and  the  Court,  settles  the  question,  and 
that  it  is  no  longer  open  for  argument.  But  the  same  power 
has  been  exercised  in  other  States  from  the  formation  of  the 
first  State  Government,  and  as  fiir  as  we  know,  has  never  been 
questioned.  The  Legislature  authorizes  the  ofiicers  of  the  mu- 
nicipal corporations,  and  the  officers  of  the  counties,  to  levy 
taxes  for  municipal  or  county  purposes.  The  authority  for  the 
levy  is  found,  and  must  be  found,  in  the  Act  of  the  Legislature; 
but  that  Act  need  not  prescribe  either  the  rate  or  the  mode  in 
which  assessments  may  be  made;  but  may  leave  these  things  to 
the  discretion  and  the  judgment  of  the  tribunal  upon  which  is 
conferred  the  power — if  you  please  to  call  it  power — to  lev}^ 
the  tax.  The  power  of  eminent  domain — the  right  to  take  pri- 
vate property  for  public  use,  subject  only  to  the  limitation  im- 
posed by  the  Constitution, 'that  due  compensation  shall  be 
made — has  been  delegated  to  every  corporation  within  the 
limits  of  this  State.  It  is  a  sovereign  power,  equal  in  magni- 
tude to  that  of  taxation;  standing  upon  the  same  footing;  and 
yet  the  right  to  delegate  it  has  never  been  questioned  in  this  or 
any  other  State.  And,  in  this  connection,  1  may  refer  to  what 
the  gentlemen  on  the  other  side  would  perhaps  call  a  delega- 
tion of  the  law-making  power.  An  Act  passed  by  the  Legislature 
in  eighteen  hundred  and  fifty-one,  granted  to  the  miners  of  this 
State  the  right  to  form  local  rules  and  regulations,  which  should 
have  the  force  and  eftect  of  laws,  under  which  rights  of  property 
have  grown  up — rules  and  regulations  in  the  nature  of  laws.  This 
Act  has  ever  been  respected  by  the  Courts,  nor  do  I  know  that  the 
authority  of  the  Legislature  to  make  that  delegation  has  ever 
been  questioned.  If  these  things  be  the  delegation  of  the  law- 
making power,  we  may  pass  through  the  laws  of  this  State  in  a 
body  and  we  will  find  them  pregnant  with  delegations  of  the 
law-making  power.  If  the  Court  does  not  affirm  the  constitu- 
tionality^ of  the  provision  which  authorizes  the  State  Board  of 
Equalization  to  exercise  this  discretionary  jjower,  the  same 
principle  by  which  it  arrives  at  its  conclusion  will  nullify  and 
set  aside  tAvo  thirds  of  the  laws  upon  our  statute  books. 


[     39    ] 

THE   POWER    CONFERRED    IS    NOT    NOVEL. 

There  is  notliiny;  now  in  the  power  which  the  Legislature 
hiis  here  attempted  to  confer  upon  the  Jiourd.  Bush's  Digest 
(page  658,  section  8(5)  of  the  Eevenue  Laws  of  Florida  pre- 
scribes that  the  "Controller  shall  apportion  upon  the  assessed 
valuation  of  the  real  estate,  as  advised  and  determined  by  the 
State  Board  of  Equaliztition,  upon  the  personal  property  of  the 
several  counties,  as  assessed  by  the  Tax  Assessor  thereof,  a  tax 
sufficient  to  cover  the  appropriations  made  by  the  Legislature 
for  the  current  year."  The  Legislature  of  the  State  of  Florida, 
as  does  the  Legislature  of  this  State,  under  the  theory  of  the 
present  tax  law,  determines  and  fixes  the  amount  which  is  to 
be  raised  for  State  purposes,  whether  it  be  one  million,  two 
million,  or  three  million  of  dollars,  and  then  directs  the  Con- 
troller, after  he  shall  have  ascei'tained  the  amount  of  taxable 
property  in  the  State,  to  fix  the  rate  of  taxation  at  an  amount 
sufiicieut  to  cover  the  appropriation.  The  Legislature  does  not 
direct  him  to  make  a  mathematical  calculation,  from  which  he 
is  to  find  the  rate,  but  directs  hin\  to  fix  a  rate  which  shall 
raise  the  amount,  and  carry  it,  net,  into  the  State  Treasury; 
giving  to  him  the  very  power  which  this  Boanl  is  allowed  here, 
viz:  the  power  of  allowing  ibr  deficiencies,  and  for  costs  of 
collection. 

In  Iowa  (Statutes  of  18G0,  page  115),  the  provisions  are,  that 
the  Board  shall  determine  the  rate  of  State  taxation  to  be 
levied  and  collected,  which  shall  not  exceed  two  mills  on  the 
dollar.  Here  is  a  limitation  as  to  the  maximum;  but  if  the 
Legislature  could  leave  anything  to  the  discretion  of  the  Board 
or  officer,  it  could  leave  the  whole  matter,  so  that  the  principle 
is  the  same. 

In  Georgia  (Code  of  Georgia,  1867,  page  161),  the  provision 
is,  that  the  assessment  shall  be  made  by  the  Governor,  that 
the  amount  of  the  taxes  assessed  shall  not  exceed  the  actual 
annual  wants  of  the  State  Government,  exclusive  of  the  com- 
missions to  collectors  and  receivers,  and  any  other  assessors — 
a  provision  similar,  in  every  respect,  to  our  own. 

In  Illinois  (Statutes  of  Illinois,  by  Gross,  volume  II,  page 
380),  the  provisions  are,  that  "there  shall  be  raised,  by  levying 


[     ^0     ]  , 

a  tax  upon  the  valuation  of  the  taxable  property  in  the  State, 
the  following  sums,  hereinafter  set  forth.  *  *  *  ii^e 
Governor  and  -Auditor  shall  annually  compute  the  rate  of 
per  cent,  computing  such  rate  per  cent  as  will  produce  the 
above  amounts,  and  no  more."  There  the  language  used  is, 
"will  produce" — substantially  the  same  as  the  language  used  in 
the  Code. 

The  object  is  to  get  so  much  money  into  the  State  Treasury. 
The  Legislature  leaves  the  Board  to  determine  the  amount  of 
delinquencies  and  the  cost  of  collection;  a  question  it  cannot 
determine  itself.  There  are  several  States  in  which  similar 
provisions  exist,  and  we  do  not  find  that  the  power  to  vest  the 
discretion  given  the  Boards,  or  officers,  has  ever  been  ques- 
tioned, in  any  of  the  States. 

I  have  argued  this  question  at  length,  because  an  import- 
ance has  been  attached  to  it  by  counsel  and  the  Court.  I  have 
argued  it  for  those  reasons,  and  for  no  other;  for  I  contend 
that  the  question  is  not  presented  in  this  case. 

THERE     HAS     BEEN     NO     EXERCISE     OP     THE     DISCRETIONARY    POWER 

CONFERRED. 

Let  it  be  supposed,  for  a  moment,  that  the  provision  which 
gives  this  discretionary  power  is  unconstitutional,  it  does  not, 
nor  can  it,  affect  the  validity  of  the  tax  levy,  for  the  State 
Board  of  Equalization  has  not  exercised  this  power  at  all. 
The  State  Board  of  Equalization,  as  appears  fi'om  this  record, 
well  understood  the  fact  that  the  last  Legislature  had  made 
larger  appropriations  than  were  ever  made  before  by  a  Legisla- 
ture in  this  State;  that  it  made  many  appropriations,  extraor- 
dinary in  their  character.  It  made  an  appropriation  of  $300,000 
to  the  State  University;  of  $175,000  to  a  Branch  Insane  Asy- 
lum; of  $75,000  for  the  completion  of  the  State  Normal  School 
building;  an  appropriation  of  $100,000  for  the  purchase  of 
State  Capitol  grounds;  and  other  extraordinary  appropriations, 
aggregating  nearly  $1,000,000.  If  the  tax  had  been  levied  by 
the  Legislature,  under  the  old  revenue  sj^stem,  it  would  have 
exceeded  one  hundred  and  thirty  cents  on  ever}-  hundred 
dollars  of  taxable  property  in  this  State.  The  Board,  recogniz- 
ing this  fact,  and  that  the  rate  of  taxation  must  necessarily  be 


[     41     ] 

heavy — whether  rightfully  or  wrongfully — endeavored  to  keep 
down  the  rate,  preferring  that  the  funtis  in  the  State  Treasury 
should  fall  short,  rather  than  too  great  a   burden  should  be 
imjjosed  on  the  people.     So  far  from  exercising  this  discretion- 
ary power,  they  did  not  lovy  a  rate  sufficient  to  raise  all  the 
money  which  the  legislative  appropriations  required — even  ad- 
mitting uU  levies  would  be  paid,  and  without  costs  of  collec- 
tion.    They  kept  clearly  within  the  power  Avhich   respondents 
concede  they  may  exercise:    the  right  to  make  a  mutlicinatical 
calculation,  and  thus  to  fix  the  rate;   for  the  rate  fixed  is  below, 
rather    tlum   above,   what    a   purely  mathematical    calculation 
would  require  it  to  be — without  allowing  for  tlelinquencies  or 
costs  of  collection.     Section  3713  of  the  Political  Code,  required 
the  Board  to  raise  $2,122,000.     The  Act  of  March  27,  1872,  to 
provide  additional  accommodations  for  the  insane  (statute^  of 
1871  and  1872,  p.  680),  in  section  22,  required  the  Board  to  raise 
$175,000  in  addition  to  that  required  by  the  Code.     The  Act  in 
relation  to  the  State  Normal  School  (statutes  of  1871  and  1872, 
section   IG,  p.  672)  required  them  to  raise  an  additional  sum  of 
$75,000.     The  aggregate  of  all  these  sums  is  82,372,000,  which 
would,  exclusive  of  the  costs  of  collection,  require  a  levy  at 
the  rate  of  thirty-seven  and  thirty-one  one  hundredths  cents 
on    each    one    hundred    dollars,    and,    inclusive    of    the    costs 
of    collection,    which    is    a    matter    fixed    by    law,    estimated 
at    seven   per    cent,    require   a  levy    of   not   less   than    thirty- 
nine  and  eighty-seven  one  hundredths  cents.     Then  we  have 
the    Act    of    April    28,    1857    (statutes     of     1857,    section    6, 
p.  300) — an  Act  for  the  payment  of  equitable  claims  against 
the  State  of  California,  and  to  contract  a  funded  debt  for  that 
purpose.     Section  6,  provides  that  ••' for  the  jiayment  in  twenty 
years  of  the  principal  and  interest  of  the  bonds  issued  under 
this  Act,  there  shall  be  levied  annually,   until  the  bonds   are 
paid,   and    promptly   collected    in    the    same    manner    as  is  or 
may  be  appointed  by  law  for  ordinary  State  taxes,  a  tax  of 
thirty  cents  on  each  one  hundred  dollars   of  assessed  value  of 
real  and  personal  property  in  the  State,  and  the  moneys  de- 
rived from  this  fund  shall   be  applied  and  set  apart  exclusively 
to  the  payment  of  the  interest   of  the  bonds  herein  provided 

6 


[     42     ] 

and  the  final  redemption  of  the  pi'incipal  of  such  bonds."  The 
people  and  Legislature,  in  ratifying  this  Act,  seem  to  have  con- 
sidered that  there  might  be  a  change  in  the  manner  of  levying 
taxes,  and,  therefore,  provided  there  should  be  levied  in  the 
same  manner  as  is  or  may  be  provided  by  law  for  ordinary 
State  taxes,  a  tax  of  thirty  cents  on  one  hundred  dollars  of  the 
assessed  value  of  the  real  and  personal  property  of  the  State. 
Then  the  Act  goes  on  to  provide  that  the  "faith  is  hereby 
pledged  by  the  State  of  California  for  the  payment,  as  herein 
jsrovided,  of  the  bonds  issued  by  this  Act,  and  the  interest 
thereon."  And  it  further  provides,  that  "a  willful  refusal  or 
neglect  by  Supervisors,  or  other  ofiicers,  to  levy  or  collect  the 
taxes  imposed  by  this  Act,  shall  be  a  misdemeanor,  and  the 
person  or  persons  convicted  thereof  shall  be  removed  from 
office,  and  punished  by  a  fine  not  exceeding  one  thousand 
dollars  or  imprisonment  in  the  Count}^  Jail  not  exceeding  six 
months,  or  both  such  fine  and  imprisonment."  Now,  this 
statute  was  ratified  by  the  people  of  the  State,  and  it  is  not 
within  the  power  of  the  Legislature  to  repeal  it,  or  to  repeal 
any  part  of  it.  It  becomes,  in  fact,  part  of  the  Constitution. 
Had  a  bond  holder,  under  this  Act,  proceeded  by  mandate 
against  the  State  Board  of  Equalization,  to  compel  the  levy  of 
this  thirty  cents  on  the  one  hundred  dollars,  would  there  have 
been  any  answer?  The  Legislature  has  never  attempted  to 
repeal  this  law.  Had  it  attempted  to  do  so,  the  attempt  would 
have  been  a  vain  and  idle  act.  Here,  then,  we  find  that  thirty 
cents  must  be  added  to  the  thirty-nine  and  eighty-seven  one 
hundredths  dollars  we  have  already  computed.  Again,  the  Act 
of  April,  1860  (statutes  April,  1860,  section  6,  p.  352),  which  is 
similar  in  its  character,  provides  for  the  levying  of  twenty-five 
cents  on  the  one  hundred  dollars,  making,  by  absolute  provisions 
of  law,  a  sum  total  of  seventy-one  and  twelve  one  hundredths 
cents  on  the  one  hundred  dollars  to  be  levied  by  this  Board; 
or,  deducting  the  percentage  allowed  in  this  estimate  for  the 
costs  of  collection,  if  that  is  not  to  be  included,  we  have  sixty- 
eight  and  fifty  one  hundredths  cents,  which,  under  the  laws  of 
this  State,  the  Board  could  have  been  compelled  b}^  a  mandate 
to  levy — because  they  had  no  discretion  in  the  matter.  Now, 
then,  so  far  from  this  Board  having  exercised  this  discretionary 


[     43     1 

power,  these  laws   show  that  the  levy  is  eighteen  and  fifty- 
two  one  hundredths  cents  less  than  the  statutes  require. 

The  Legishxture,  in  adopting  the  Code,  did  not  intend  to  re- 
peal the  funding  Acts  in  question,  but  on  the  contrary,  out  of 
an  abundance  of  caution,  expi-essly  continued   tliem  in  force. 
(Political  Code,  Sec.  19,  Subd.  3.)     JNow,  I  ask,  in  view  of  these 
facts,  how  can  the  levies  of  this  year  be  assailed;  because  this 
discretionary  power  was,  by  law,  vested  in  the  Board?  Whether 
it  be  constitutional  or  unconstitutional   is  no  question   for  the 
Court  to  determine  in  this  case,   for  the  power  has  not  been 
exercised.     But,  we   are   told   by  the   learned   counsel   on   the 
other  side,  that  if  we  have  levied  too  small   an   amount,  the 
whole  levy  falls;  or,  in  other  words,  that  unless  a  party  is  re- 
quired by  the  officer  to  pay  all  which  the  law  requires  him  to 
pay,    he    cannot   be   required   to  pay  anything.      Let   us   put 
an    apt   illustration.      Supjjose    that    the    Legislature    of    the 
State  had  fixed  the  rate  of  taxation,  for  State  purposes,  at  fifty 
cents  on  each  one  hundred  dollars;  sup2:)ose  that,  in  the  County 
of  San   Francisco,  the  Auditor,  instead  of  carrying  it  out  fifty 
cents,  had   carried  it  out  twenty-five  cents — could   the  party 
who  should  have  been  taxed   at  the   rate  of    fifty  cents,  and 
who  is,  in   fact,  only  called  upon  to  pay  twenty-five  cents  by 
reason   of  this  clerical  error — could  ho  have  involved  the  aid 
of  a   Court  of  equity?      If   so,  uj^on   what  principle?      lie  is 
losing  no  right;  the  officers  of  the  law  are  not  seeking  to  take 
from  him  more  than  the  law   requires.     He  is  benefited  rather 
than  injured  by  it.     Suppose  that  Judge  Belcher  were  to  exe- 
cute a  mortgage  to  my  friend   Colonel  Hoge,  to  secure  the  sum 
of  ten  thousand  dollars;    that,  on  default  of  paj^ment,  Colonel 
Hoge  should  institute  a  suit,  and  foreclose  the  mortgage,  and 
a  judgment  should   be  ordered   from  the   bench,  for  the  full 
sum;  that  the  Clerk,  through  mistake,  should  enter  a  judgment 
for  five  thousand  dollars.     Now  I  can  see  how  Colonel  Hoge 
might  be  heard  to  com^ilain,  but  I  cannot  conceive  upon  what 
principle  Judge  Belcher  could  invoke  the  aid  of  a  Court  of 
equity  to  set  aside  the  judgment.     Yet  the  facts  in  the  sup- 
posed case  are  identical  with  the  one  before  the  Court.     We 
have  this  state  of  facts  presented  here — parties  coming  into 
Court  asking  to  be  relieved  from  the  burdens  of  taxation,  be- 


[     44     ] 

Cause  the  officers  of  the  h^w  are  not  seeking  to  collect  the 
amount  they  are  authorized  to  collect,  but  a  less  sum.  If  there 
is  anything  in  this  objection,  this  Court  may  correct  it.  If  the 
Auditor  of  San  Francisco  has  not  cai-ried  out  the  amount  of 
taxes  at  the  rate  of  sixtj'-eight  and  fifty-two  one  hundredths 
cents  on  the  one  hundred  dollars,  this  Court  may  direct  him  to, 
and  may,  at  the  instance  of  these  parties  who  are  complaining, 
at  least  fix  the  amount  at  that  required  by  law.  But  I  imagine 
that,  however  much  the  State  may  complain — however  much  its 
bond  holders  may  complain — a  Court  of  equity  will  not  listen  to 
a  complaint  of   that  character  from  the  parties  who  are  not 


taxed  enough. 


REVENUE   SYSTEM   IS    GENERAL. 


The  next  proposition  which  I  shall  consider  is  the  objection 
taken  by  counsel  on  the  other  side,  that  the  provisions  of  the 
Code  in  relation  to  the  revenue  do  not  apply  to  the  City  and 
County  of  San  Francisco. 

Chief  Justice  Wallace  said  that  the  Court,  as  then  advised, 
were  satisfied  with  the  former  argument  of  counsel  upon  the 
point,  and  that  the  provisions  of  the  Political  Code  in  relation 
to  revenue  do  apply  to  the  City  and  County  of  San  Francisco. 

ARE    SOLVENT   DEBTS    SUBJECT    TO    TAXATION? 

We  come  now  to  the  consideration  of  the  next  point:  Are 
solvent  debts  subject  to  taxation?  We  maintain  the  affirmative 
of  this  proposition,  and  rest  our  arguments  upon  the  trinity  of 
the  law — principle,  reason,  and  authority.  The  principle  is — 
that  all  property  must  be  taxed;  the  reason — that  otherwise 
the  burden  of  taxation  might  fall  upon  the  few;  the  authority — 
the  uniform  practice  in  this  State  and  in  our  sister  States,  and 
the  adjudged  cases  in  this  State.  All  property  must  be  taxed. 
This  is  the  mandate  of  the  Constitution,  a  provision  of  the 
fundamental  law,  beyond  the  reach  of  legislative  enactment. 
Everything  falling  within  the  definition  of  the  word  "  prop- 
erty," must  be  taxed.  A  solvent  debt,  being  a  chose  i)i  action, 
falls  within  every  received  definition  of  that  term.  Property 
is  the  right  to  enjoy  a  thing — to  use,  to  dispose  of  it,  as  the 
owner  pleases;  providing  he  makes  no  use  of  it  prohibited  by 


C     45     ] 

law.  The  owner  of  a  solvent  debt  possesses  all  these  rights. 
He  may  use,  enjoy,  or  dispose  of  it,  as  he  pleases.  The  law 
universally  treats  solvent  debts  as  property.  They  arc  the  sub- 
ject of  sale  and  purchase;  they  are  subject  to  execution.  They 
pass  as  assets  into  the  hands  of  the  administrator.  Checks, 
drafts,  notes  of  solvent  banks,  have  become  the  great  medium 
through  which  commerce  is  carried  on,  and  have  been  nearly 
universall}'  substituted  in  trade  for  the  precious  metals.  A 
debt  due  from  a  solvent  debtor  to  a  creditor  nuiy  be  used  in 
trade  and  commerce,  in  precisely  the  same  manner  that  gold 
and  silver  can  be  used.  The  word  "property,"  fountl  in  sec- 
tion 13,  Article  XI,  of  the  Constitution,  is  used  in  that  section 
in  its  ordinary  and  popular  sense.  The  same  word  occurs  in 
other  sections  of  that  instrument;  and  it  is  a  well-settled  rule 
of  constitutional  construction,  that  it  must  receive  the  same 
definition  in  each  of  the  sections  in  which  it  occurs,  unless 
there  is  something  in  the  context  in  one  section  showing  that 
it  has  a  different  meaning  in  that  section  from  what  it  has  in 
another. 

In  Article  I  of  the  Constitution,  it  is  declared,  all  men  are 
by  nature  free  and  independent,  and  have  certain  inalienable 
rights,  among  which  are  those  of  enjoying  and  defending  life 
and  liberty,  and  acqiairing,  possessing,  and  protecting  property, 
and  pursuing  and  obtaining  safety  and  happiness.  It  would 
require  no  argument  to  prove  that  the  word,  as  used  in  this 
section,  includes  not  only  real  estate  and  movable  property, 
but  everything  acknowledged  or  admitted  to  be  property  by 
the  jieople  of  civilized  nations.  It  could  not  be  contended,  in 
the  face  of  this  declaration,  that  a  man  has  not  the  same  right 
to  acquire,  j^ossess,  and  protect  choses  in  action  as  property  of 
any  other  description. 

In  section  8  of  the  same  Article,  it  is  provided  that  "  no  per- 
son shall  be  deprived  of  life,  liberty,  or  property,  without  due 
l^rocess  of  law;  nor  shall  private  property  be  taken  for  public 
use  without  just  compensation."  Would  the  Government  have 
a  right  arbitrarily  to  seize  a  solvent  debt  or  to  confiscate  a 
State  bond,  because  neither  are  property?  Yet  this  would 
follow,  unless  choses  in  action  are  included  within  the  meaning 
of  the  word  property. 


[    46     ] 

Section  14,  of  Article  XI,  declares  that  "  all  property,  both 
real  and  pei'sonal,  of  the  wife,  owned  or  claimed  by  her  before 
marriage,  and  that  acquired  afterwards  by  gift  or  descent,  shall 
be  her  separate  property."  Do  the  bonds,  promissory  notes,  or 
other  solvent  debts,  earned  by,  or  belonging  to  the  wife  before 
marriage,  or  afterwards  acquired  by  gift,  devise,  or  descent, 
become  her  separate  property?  Certainly  not;  unless  the  word  is 
broad  enough  to  receive  the  interpretation  which  we  place  upon 
it.  Section  17,  of  Article  I,  declares  that  "foreigners,  who  are, 
or  who  may  hereafter  become,  bona  fide  residents  of  this  State, 
shall  enjoy  the  same  rights  in  respect  to  the  possession,  enjoy- 
ment, and  inheritance  of  property,  as  native-born  citizens." 
When,  in  the  case  of  The  People  v.  Eddy  (January  Term,  1872), 
the  same  doctrine  was  contended  for  as  respondents  contend 
for  in  this  case,  Mr.  Justice  Ehodes,  in  relation  to  this  section, 
observes: 

"  The  foreigner  who,  after  having  been  protected  by  the  Con- 
stitution in  the  enjeyment  of  his  lands,  should  find  that  he  is 
liable  to  be  plundered  of  the  bill  of  exchange  which  he  had 
received  on  his  sale  of  the  land,  because  the  bill  was  only  a 
chose  in  action — only  the  evidence  of  a  debt — and,  therefore, 
not  under  the  protection  of  the  Constitution,  might  well  con- 
clude that  those  who  framed  that  instrument,  instead  of  being 
statesmen,  as  we  have  been  accustomed  to  regard  them,  were 
only  savages,  whose  untutored  minds  were  incapable  of  enter- 
taining the  idea  of  any  property  except  such  as  they  could 
both  see  and  touch." 

We  have  seen  that  in  each  of  these  sections  the  word  "prop- 
erty" must  be  construed  to  include  choses  in  action,  or  the 
sections  would  fail  of  their  very  object.  Coming  now  to  Sec- 
tion 13,  Article  XI,  we  find  not  only  the  word  "property  "  uaed 
in  this  section,  when  it  declares  that  property  shall  be  taxed  in 
proportion  to  its  value,  but  the  framers  of  that  instrument  did 
not  stop,  as  in  the  sections  above  recited,  with  the  mere  use  of 
the  word  property.  As  if  fearing  that  a  more  limited  construc- 
tion might  be  attempted,  they  used  the  phrase  "  all  property  in 
this  State  shall  be  taxed."  If,  in  the  sections  above  cited,  the 
word  "property  "  must  be  construed  to  include  choses  in  action, 


L    47     ] 

(Iocs  it  not  follow,  us  a  logical  necessity,  that  the  phrase  "  all 
property"  must  include  choses  of  action  ?  If  aii}'  illustration 
of  the  reasoning  for  which  we  contend  be  necessary,  the  case 
of  the  Savings  and  Loan  Society  presents  that  illustration.  "We 
find  from  the  testimony  in  this  case  that  the  corporation  has  a 
capital  stock  of  five  hundred  thousand  dollars;  that  since  its 
organization  they  have  taken  from  the  moneys  of  the  tlcpositors 
the  further  sum  of  three  hundred  thousand  dollars,  and  made 
of  it  a  reserve  fund — which  is  also  the  property  of  the  stock- 
holders— thus  adding  sixty  per  cent  to  their  original  capital. 
During  all  this  time,  as  far  as  we  can  discover  from  the  testi- 
mony, the  dividends  to  the  stockholders  have  amounted  to 
the  enormous  sum  of  twenty-two  per  cent  per  annum.  And 
now  it  is  claimed  that  a  business  so  enormously  productive 
should  be  exempt  from  taxation.  Not  one  of  the  stockholders 
has  been  taxed  for  his  shares  of  the  stock;  not  one  of  the  de- 
positors has  been  taxed  for  the  money  deposited  in  the  bank, 
and  as  far  as  the  record  discloses  the  facts,  not  a  single  person 
owing  a  solvent  debt  to  the  bank  has  been  taxed  ujjon  the 
money  loaned,  which  is  the  basis  of  the  debt.  It  is  said  that 
by  some  inexorable  law  of  trade  the  borrower  pays  the  tax 
upon  this  money.  If  this  be  so,  why  do  we  find  the  lender 
complaining?  If  it  be  true,  as  asserted,  that  the  defense  in 
these  cases  is  made  in  the  interest  of  the  peo^jle  at  large; 
in  the  interest  of  the  borrower  and  not  of  the  lender,  why, 
I  ask,  why  is  it  we  find  the  voice  of  the  peoi^le  against  the 
policy  of  this  exemption?  The  result  of  the  decision  which 
exempts  this  property  from  taxation  is  to  cast  a  double  burden 
upon  the  small  proj^erty  owner.  Last  year,  in  the  City  and 
County  of  San  Francisco,  the  State  and  county  taxes  aggrega- 
ted the  sum  of  one  hundred  and  fifty  cents  on  the  one  hundred 
dollars  of  the  taxable  property.  Then,  in  making  the  lev}'', 
solvent  debts  were  taken  into  the  computation  of  the  amount 
of  the  property.  This  year,  under  the  effect  of  the  decision 
which  this  Court  has  made,  solvent  debts  have  been  excluded 
from  that  computation,  and  the  taxes  imposed  on  property  will 
exceed  two  hundred  cents  on  each  one  hundred  dollars  worth 
of  property.  Instead  of  the  borrower  paying  the  taxes  upon 
the  proj)erty  exempted   by  the   decision,  the  deficit  which  it 


[     48     ] 

leaves  is  made  up  b}'  the  bui'dens  imposed  upon  the  small 
jjroperty  owners. 

The  authority  upon  which  we  rely  in  support  of  the 
proposition  that  solvent  debts  are  taxable,  is:  First — The 
uniform  practice  of  this  State,  from  the  adoption  of  its 
Constitution  down  to  the  present  time.  The  first  Legisla- 
ture which  assembled  in  this  State,  in  the  very  first  revenue 
law  which  was  enacted  (Statutes  of  1850,  page  135),  provided 
that  this  kind  of  property  should  bear  its  proportion  of  the 
burden  imposed  for  the  support  of  the  Government.  In  every 
revenue  law  enacted  in  the  State,  down  to  the  adoption  of  the 
Code,  solvent  debts,  moneys  loaned  and  secured  by  mortgage, 
have  been  recognized  as  property  within  the  meaning  of  that 
term,  as  used  in  the  Constitution,  and  as  such,  in  some  form  or 
other,  have  been  subject  to  taxation.  We  have,  as  authority  in 
favor  of  our  views  ujjon  this  subject,  the  cotemporaneous  con- 
struction placed  upon  the  Constitution  by  the  fii'st  Legislature 
which  assembled.  We  have  the  construction  placed  upon  it  by 
every  Legislature  that  has  since  assembled.  Twenty  years  of 
acquiescence  in  this  construction  bj^  the  law-making  jDower,  and 
by  the  people. 

It  is  a  well  settled  rule  of  constitutional  construction  that 
terms  and  phrases  in  the  Constitution  of  one  State,  which  have 
been  borrowed  from  the  Constitution  of  other  States,  should,  in 
the  absence  of  an  apparent  intention  to  the  contrarj^,  be  construed 
as  the  same  terms  and  phrases  were  construed  by  the  Courts  and 
Legislatures  of  the  State  from  which  the  provisions  were  bor- 
rowed. Turning  now  to  the  Constitutions  of  the  various  States, 
older  in  point  of  time  than  our  own,  we  find  that  in  Arkansas  the 
constitutional  provision  is,  that  all  real  and  personal  property 
shall  be  taxed  according  to  its  true  value  in  money.  Under  this 
provision  solvent  debts  have  always  been  taxed  in  that  State — 
have  been  regarded  as  property  within  the  meaning  of  the 
Constitution.  The  provision  as  to  uniformity  is  also  found  in 
the  Constitution  of  Arkansas.  In  Florida  the  constitutional 
provisions  require  uniformity  and  equality  in  taxation.  Under 
this  constitutional  provision,  debts  due  or  to  become  due,  hav- 
ing been  included  within  the  term  "property,"  are  taxed  as 
such.     The  same  is  true,  both  as  to  the  constitutional  provision 


[    49     ] 

and  the  legislation  under  it,  in  the  States  of  Illinois,  Indiana, 
Louisiana,  Michigan,  Minnesota,  Mississippi,  Nebraska,  Oregon, 
Tennessee,  South  Carolina,  Texas,  Virginia,  and  West  Virginia. 
In  Kentucky  there  are  no  constitutional  restrictions  in  this  re- 
spect, but  solvent  debts  are  recognized  as  property  and  taxed  as 
such.  The  same  ma}^  be  said  of  Maine,  Iowa,  Connecticut,  Massa- 
chusetts, New  York,  Maryland,  New  Jersey,  New  Hampshire, 
Missouri,  Wisconsin,  Alabama,  Ohio,  and  Vermont.  As  far  as 
we  are  aware  the  validity  of  the  legislation  in  none  of  the 
States  referred  to  has  ever  been  assailed,  either  upon  the  ground 
that  solvent  debts  were  not  propei'ty,  subject  to  taxation,  or 
that  the  rule  which  requires  uniformity  and  equality  was  vio- 
lated by  such  taxation.  We  have  here  in  support  of  our  posi- 
tion that  solvent  debts  are  property,  subject  to  taxation,  and 
that  the  taxes  levied  upon  them  does  not  violate  the  rule  which 
requires  equality  and  uniformity,  the  practice  of  nearly  every 
State  in  the  Federal  Union. 

The  power  and  right  of  the  Legislature  to  impose  this  taxa- 
tion was  challenged  in  the  case  of  The  People  v.  McGreery,  34  Cai., 
p.  446.  The  facts  in  that  case  were  that  McCreery  loaned  to  one 
Lick  a  large  sum  of  money,  taking  his  own  security  by  mortgage 
upon  property  situated  in  the  City  and  County  of  San  Fran- 
cisco for  repayment  thereof.  The  solvent  debt  so  secured  was 
assessed  to  McCreery.  and  the  payment  of  the  taxes  due  there- 
upon was  attempted  to  be  enforced.  One  of  the  defenses  in- 
terposed rested  upon  the  assumption  that  the  tax  levied  upon 
the  dolveut  debt  and  the  tax  levied  upon  the  property  mort- 
gaged to  secure  the  payment  of  that  debt,  w^as  double  taxation. 

"But,"  said  the  Court,  in  answer  to  this  position,  "it  is  ap- 
parent that  the  question  whether  the  assessment  against  the 
defendant,  of  the  sum  of  money  loaned,  under  the  existing  cir- 
cumstances, amounts  to  double  taxation,  does  not  legitimately 
arise  uj^on  the  facts  of  the  case.  While  the  defendant  held  the 
money,  which  he  afterward  loaned  to  Lick,  he  was  taxable  for 
that  sum,  and  when  he  passed  the  money  to  Lick,  upon  making 
the  loan,  and  took  Lick's  obligation  to  pay  the  same,  secured 
by  a  deed  of  trust  or  other  adequate  security,  he  certainly  did 


[     50     ] 

not  divest  himself  of  so  mneli  property.  He  possessed  the 
same  amount  of  propertj^  that  he  held  before  the  loan  was 
made.  Its  form  only  was  changed.  And  so  in  all  cases  of 
loans.  The  lender  owns  the  debt,  and  the  debt  is  property,  its 
value  depending  on  the  sufficiency  of  the  security,  if  there  be 
security,  and  the  ability  of  the  borrower  to  pay  the  debt.  The 
holder  of  the  debt  is  taxable  upon  the  value  of  the  debt.  If  the 
property  of  the  borrower  is  assessed  at  its  full  value,  without 
any  deduction  for  what  he  owes,  whether  its  payment  is  secured 
by  any  lien  or  charge  upon  his  property  or  not,  perhaps  he 
may  complain  of  undue  or  double  taxation;  and  it  seems  that 
there  is  no  difference,  in  this  respect,  whether  the  lender  holds 
only  the  promise  of  the  borrower,  which  may  be  enforced 
against  his  property  by  proper  legal  proceedings,  or  has  a  lien 
upon  his  real  or  personal  propei'ty  by  judgment  or  the  levy  of 
an  execution,  or  whether  he  has  a  specific  lien  by  virtue  of  a 
moi'tgage,  pledge,  deed  of  trust,"  etc. 

The  case  of  The  People  v.  McCreery  is  on  all  fours  in  this 
respect,  with  the  ease  at  bar,  with  this  excejDtion  :  that  in  the 
case  of  The  People  v.  McCreery  it  was  shown  that  the  projjerty 
mortgaged  had  been  taxed  at  its  full  value  and  the  taxes  paid 
thereon.  If,  in  that  case,  McCreery  owned  the  property,  and 
the  debt  was  property,  and  for  these  reasons  a  proper  subject 
of  taxation,  so,  in  this  case,  the  solvent  debts  owing  to  this  cor- 
poration are  its  property  and  the  subject  of  taxation.  lu  the 
case  of  The  People  v,  McCreery,  the  opinion  in  the  first  instance 
was  written  by  Mr.  Justice  Erodes  and  concurred  in  by  Jus- 
tices Curry,  Sawyer,  Shafter,  and  Sanderson.  Pending  the 
petition  for  rehearing,  the  term  of  Justice  Curry  expired,  and 
Justice  Shafter,  by  resignation,  ceased  to  be  a  member  of  the 
Court.  Their  places  were  supplied  by  Justices  Crockett  and 
Sprague.  Upon  the  petition  for  rehearing,  the  opinion  was 
written  by  Justice  Crockett  and  concurred  in  by  all  of  the 
other  Justices.     Says  the  learned  Justice  (p.  459): 

"  Counsel  have  urged,  with  much  earnestness,  that  this  pre- 
sents a  case  of  double  taxation.  The  argument  is,  that  the 
owner  of  the  mortgaged  premises  is  taxed  to  the  full  value  of 
the  property,  without  any  abatement  for  the  mortgage  debt, 


[     51     ] 

while  the  hohler  of  the  mortgage  is  also  taxed  for  the  full 
amount  of  the  debt.  In  other  words,  it  is  insisted  that  if  the 
owner  of  the  mortgaged  property  is  assessed  for  its  full  value, 
the  debt  secured  by  the  mortgage,  Avhich  is  a  lien  on  the  prop- 
erty, and  to  that  extent  represents  the  same  value,  cannot  be 
taxed  without  creating  a  case  of  double  taxation.  But  if  that 
be  the  result,  it  is  obvious  it  is  only  the  mortgagor  who  can 
complain.  It  is  his  property,  if  any,  which  is  doubly  taxed, 
and  not  that  of  the  mortiraijee." 

Thus  the  Court  decided,  in  effect,  the  very  question  which  is 
presented  in  this  case.  If  there  is  any  double  taxation  here,  it 
is  the  tax  imposed  upon  the  borrower  and  not  upon  the  lender. 
The  lender  owns  but  a  single  piece  of  property — the  solvent 
debt — and  that  debt  is  taxed  but  once;  and  he  will  not  be 
heard  to  complain  that  the  property  of  the  debtor  has  been 
doubly  taxed. 

The  same  question  was  presented  in  the  case  of  The  People 
v.  Whartenbury,  38  Cal.,  p.  463.  In  that  case  the  defendant, 
assessed  for  the  taxes  in  contest,  was  a  resident  of  Nevada 
County,  and  was  the  holder  of  certain  unsatisfied  mortgages 
made  hy  persons  residing  in  the  City  and  County  of  San  Fran- 
cisco, upon  real  estate  situate  in  said  city  and  count}^  to  secure 
an  indebtedness  to  the  defendant  for  money  loaned  and  let  at 
interest,  amounting  in  the  aggregate  to  one  hundred  and  twelve 
thousand  dollars.  The  defendant  was  assessed  in  due  form  in 
Nevada  County  for  taxes  due  upon  said  sum,  and  payment  hav- 
ing been  refused,  an  action  was  brought  to  enforce  the  collec- 
tion. 

The  defense  set  up  was:  First — That  the  property,  included 
in  the  mortgages,  was  duly  assessed  in  the  City  and  County  of 
San  Francisco,  at  its  full  value,  to  the  several  mortgagors — thr 
owners  thereof — prior  to  the  assessment  to  the  defendant  in 
Nevada  County.  A  demurrer  to  the  answer  was  filed,  which 
was  sustained  by  the  Court,  and  the  defendant,  having  declined 
to  amend,  final  judgment  was  entered  for  the  plaintiffs.  The 
opinion  in  the  case  was  delivered  by  Judge  Crockett,  who,  on 
1).  404,  says: 

"The  fact  that  the  mortgaged  property  was  assessed  at  its 


[     52     ] 

full  value  to  the  mortgagors,  evidently  presents  no  defense  to 
this  action.  This  point  was  expressly  decided  in  The  People  v. 
McCreery,  34  Cal,,  p.  459.  In  that  case,  we  held  that  under  the 
facts  stated,  if  any  one  could  complain  of  double  taxation,  it 
was  the  mortgagor  and  not  the  mortgagee;  but  we  expressed 
no  opinion  on  the  point  whether  it  presented  a  case  of  double 
taxation,  even  as  against  the  mortgagor." 

The  case  of  The  People  v.  McCreery  was  also  affirmed  in  the 
case  of  The  People  v.  The  Black  Diamond  Coal  Mining  Company, 
37  Cal.,  p.  54,  and  in  the  case  of  The  People  v.  Gerke,  37  Cal., 
p.  228.  Now,  these  cases  are  full  and  decisive  upon  this  prop- 
osition: That,  if  A.  loan  money  to  B.,  and  the  repayment  of 
the  money  is  secured  by  a  mortgage  upon  B.'s  property,  a  tax 
upon  the  debt  so  secured  does  not  violate  the  rule  which  re- 
quires uniformity  and  equality  in  taxation.  These  cases  are 
full  to  the  point,  that  if  there  is  double  taxation  it  is  a  tax 
which  is  imposed  upon  the  property  of  the  mortgagee,  and  that 
he  alone  can  complain.  The  point  whether  a  tax  levied  under 
this  state  of  facts,  upon  the  property  of  the  mortgagee,  would, 
as  in  his  favor,  constitute  a  case  of  double  taxation,  was  not 
decided,  for  it  was  not  involved  in  either  of  the  cases.  Nor 
is  that  point  involved  in  the  case  at  bar.  In  Lick  v.  Atistin 
(April  Term,  1872),  the  question  was  presented  whether  the 
mortgagee,  in  such  a  case,  was  subject  to  double  taxation. 
Lick  was  the  debtor  of  McCreery;  the  debt  which  he  owed 
was  secured  by  a  mortgage  upon  his  property  in  the  City 
and  County  of  San  Francisco.  He  alleged  in  his  comj^laint, 
filed  for  the  purpose  of  enjoining  the  Tax  Collector  from 
selling  the  property,  that  the  real  estate,  when  assessed,  was 
subject  to  certain  mortgages;  that  the  Assessor  was  informed 
of  the  fact,  but  that  he  assessed  the  property  without  making 
any  deduction  on  account  of  the  mortgages.  The  question  pre- 
sented was,  whether  the  facts  made  a  case  of  double  taxation. 
The  Court  say: 

"It  is  not  alleged  that  the  valuation  of  the  Assessor,  of  the 
several  parcels  of  land,  was  in  excess  of  their  real  value.  It  is 
not,  therefore,  double  taxation  in  view  of  the  real  value  of  the 
land.     *     *     *     The  only  plausible   ground    assumed  by  the 


[     53    ] 

plaintiffs  is,  that  real  estate,  subject  to  a  mortgage,  should  bo 
assessed  at  its  value,  less  the  amount  of  the  mortgage  debt; 
because  the  excess,  if  any,  of  the  value  of  the  land  over  the 
mortgage  debt,  is  the  true  value  of  the  mortgagor's  interest  in 
the  land.  The  Constitution  and  laws  might  have  been  so 
framed  as  to  work  that  result,  but  the}'  were  not.  The  Consti- 
tution, section  thirteen,  Article  XI,  provides  that  all  i^roperty 
shall  be  taxed  in  proportion  to  its  value;  and  the  revenue  law 
provides  that  the  Assessor  shall  ascertain  the  value  of  each 
parcel  of  jiroperty,  etc.;  but  it  is  nowhere  provided  that  the 
aggregate  amount  of  the  taxpayer's  debts  shall  be  deducted 
from  the  valuation  of  his  property;  nor  that  his  indebtedness 
shall  be  deducted  from  the  valuation  of  any  of  his  property, 
except  for  his  solvent  debts.  Whether  that  provision  of  the 
statute  is  violated  is  not  a  question  in  this  case;  but  assuming 
that  the  statute,  in  that  respect,  is  violated,  it  clearly  shows 
that  the  solvent  debts  of  the  taxpayer  are  the  only  property 
for  which  he  is  permitted  to  deduct  his  indebtedness." 

The  decision  in  that  case  was  written  by  Justice  Ehodes, 
and  concurred  in  by  Justices  Niles  and  Belcher.  Justice 
Wallace,  having  been  of  counsel  in  the  Court  below,  did  not 
sit  in  the  case.  We  have,  in  these  decisions,  the  proposition 
clearly  established,  that  solvent  debts  are  property  within  the 
meaning  of  that  term  as  used  in  the  Constitution;  and  that  a 
tax  upon  a  solvent  debt,  secured  by  mortgage  upon  real  prop- 
erty, and  a  tax  upon  the  property  so  mortgaged,  do  not  consti- 
tute, in  either  event,  a  case  of  double  taxation.  But  the  au- 
thorities upon  this  subject  do  not  stop  here.  On  the  first  of 
April,  eighteen  hundred  and  seventj'',  the  Legislature  of  this 
State  passed  an  Act  entitled  "  An  Act  to  prevent  double  taxa- 
tion "  (Stats,  of  1870,  p.  584),  section  one  of  which  provides 
that  "no  mortgage  or  lien  given  and  held  upon  real  estate,  or 
the  debts  thereby  secured,  or  pi'omissory  notes  secured  by 
mortgage,  shall  be  assessed  upon  the  books  of  any  Assessor, 
State,  county,  or  otherwise."  The  Legislature,  in  the  passage 
of  this  Act,  intended,  by  enactment,  to  reach  the  very  point 
arrived  at  by  the  Supreme  Court  of  this  State  in  the  opinion 
ali'cady  rendered  in  this  case.     It  endeavored  to  exempt  from 


[     54     ] 

taxation  solvent  debts  secured  by  mortgage.  Notwithstanding 
this  Act  stood  upon  the  statute  books,  the  Assessor  of  the 
County  of  Nevada  assessed  to  one  Eddy  certain  solvent  debts 
due  to  him,  which  were  secured  by  mortgages  upon  real  estate. 
An  action  was  brought  for  the  recovery  of  the  tax  so  assessed; 
the  defendant  demurred  to  the  complaint,  on  the  grounds  that 
the  property  was  not  subject  to  assessment  or  taxation  under 
the  laws  of  the  State,  and  that  the  assessment  of  such  properly 
is  i^rohibited  b}^  law.  The  demurrer  was  overruled,  and  the  de- 
fendant apjjealed.  On  the  appeal,  the  Supreme  Court,  at  its 
January  Term,  eighteen  hundred  and -seventy-two,  rendered  a 
decision,  in  which  the  Court  held,  in  effect,  that  solvent  debts 
were  property  and  subject  to  taxation  by  virtue  of  constitu- 
tional provisions,  and  that  it  was  not  within  the  power  of  the 
Legislature  to  exempt  them  from  taxation;  thus  affirming  the 
judgment  of  the  Court  below.  The  opinion  in  this  case  was 
also  written  by  Justice  Ehodes,  and  concurred  in  by  Justices 
Crockett  and  Wallace.  Justice  Niles,  having  been  of  coun- 
sel, did  not  sit  in  the  case.  In  this  case  a  rehearing  was 
granted,  and  at  the  April  Term,  eighteen  hundred  and  seventy- 
two,  the  Court  filed  an  opinion,  adhering  to  its  former  opin- 
ion; Justices  Ehodes,  Crockett,  Wallace,  and  Belcher,  concur- 
ring; Justice  NiLES  being  disqualified. 

The  various  cases  which  I  have  cited  as  authority  were  ably 
and  elaborately  argued  by  many  of  the  most  eminent  members 
of  the  profession.  There  is  no  point  that  has  been  presented 
in  the  case  at  bar,  no  argument  that  has  been  advanced  in  sup- 
port of  the  position  contended  for  by  respondent's  counsel 
here,  but  what  was  presented  and  made  in  each  of  the  cases 
referred  to.  They  were  decided  after  mature  deliberation,  in 
full  view  of  all  the  provisions  of  law  that  could  be  brought  to 
bear  upon  the  questions  presented,  and  must  be  considered  as 
authority  of  the  very  highest  character.  Nine  eminent  Judges, 
including  every  member  of  the  present  Bench,  have  added  the 
weight  of  their  official  positions  and  professional  acquirements 
to  the  principles  laid  down  in  those  cases.  If  the  questions 
disposed  of  can  now  be  considered  open  questions  in  this  Court, 
we  must  set  it  down  that  authority  goes  for  naught,  and  that 
the  decision  of  this  Court,  solemnly  made,  is  but  a  challenge  to 


L     5.^     ] 

the  next  comer.  It  may  well  bo  donbted  wlicthcr  such  an 
array  of  authority  can  be  presented  in  lavor  of  any  other 
principle  ever  laid  down  by  this  Court. 

STARE   DECISIS. 

Said  BuLWER,  J.,  in  1  East,  409:  "The  rule  stare  decisis  is  one 
of  the  most  sound  in  the  law." 
Said  Chancellor  Kent  (1  Kent,  476): 

"If  a  decision  has  been  made  upon  solemn  argument  and 
mature  deliberation,  the  presumption  is  in  favor  of  its  correct- 
ness; and  the  community  have  a  right  to  regard  it  as  a  just 
declaration  or  exposition  of  the  law,  and  to  regulate  their 
actions  by  it.  It  would,  therefore,  be  extremely  inconvenient 
to  the  public,  if  precedents  were  not  duly  regarded  and  implic- 
itly followed.  It  is  by  the  notoriety  and  stability  of  sucli 
rules  that  professional  men  can  give  safe  advice  to  those  who 
consult  them;  and  people  in  general  can  venture  with  confi- 
dence to  buy  and  trust,  and  to  deal  with  each  other.  If  judi- 
cial decisions  were  to  be  lightly  disregarded,  we  should  disturb 
and  unsettle  tlie  great  landmarks  of  property.  When  a  rule 
has  been  once  deliberately  adopted  and  declaret^  it  ought  not 
to  be  disturbed,  unless  by  a  Court  of  appeal  or  review,  and 
never  by  the  same  Court,  except  for  very  cogent  reasons,  and 
upon  a  clear  manifestation  of  error;  and  if  the  practice  were 
otherwise,  it  would  be  leaving  us  in  a  state  of  perplexing  un- 
certainty as  to  the  law." 

On  this  point.  Sir  William  Jones  has  well  said: 

"  No  man,  who  is  not  a  lawyer,  would  ever  know  how  to  act; 
and  no  man  who  is  a  lawyer  would,  in  many  instances,  know 
what  to  advise,  unless  Courts  were  bound  by  authority  as 
firmly  as  the  Pagan  deities  were 'supposed  to  be  bound  by  the 
decrees  of  fate." 

If,  upon  one  decision  made  upon  solemn  argument  and  mature 
deliberation,  the  presumption  is  in  favor  of  its  correctness,  and 
the  community  have  a  right  to  regard  it  as  a  just  exposition  of 
the  law,  and  to  regulate  their  actions  by  it,  what  shall  be  said 
of  three,  four,  or  tive  decisions,  concurred  in  by  every  Judge 


[     56     ] 

who  comes  upon  the  bench  during  a  long  series  of  years? 
The  people  of  this  State,  resting  upon  the  exposition  given  to 
the  Constitution  by  these  numerous  cases,  have,  with  but  few 
exceptions,  paid  the  taxes  levied  upon  this  class  of  property. 
Are  we  now  to  be  told,  at  the  instance  of  the  few  moneyed 
corporations  in  San  Francisco  who  are  bidding  defiance  to  the 
laws,  that  the  question  is  still  an  open  one?  If  these  decisions 
are  not  authority,  if  the  question  may  be  opened  and  argued 
from  year  to  year,  we  may  well  ask,  what  lawyer  will  ever 
know  how  to  act?  What  lawyer  will  know  how  to  advise  his 
clients? 

In  the  case  of  The  People  v.  McCreery,  the  question  was  pre- 
sented to  the  Suj^reme  Court,  in  part,  by  ex-Governor  Haight. 
In  The  People  v.  Eddy,  by  such  eminent  counsel  as  S.  M.  Wilson, 
of  San  Francisco,  and  Niles  Searles,  of  JS^evada  County,  and  the 
point  was  decided  against  them.  They  had  a  right  to  suppose, 
and  the  people  had  a  rignt  to  suppose,  that  the  rule  established 
in  those  cases  was  to  be  the  law  of  the  land,  until  changed  by 
that  power  which  alone  can  make  or  alter  laws. 

The  application  of  the  rule  of  stare  decisis  to  questions  in- 
volving constitutional  construction,  is  not  a  novel  practice.  In 
Seale  v.  Mitchell,  5  Cal.,  p.  401,  it  is  said; 

*'In  construing  statutes  and  the  Constitution,  the  rule  is 
almost  universal  to  adhere  to  the  doctrine  oi  stare  decisis.  This 
is  an  adjudicated  question,  and  the  subject  of  its  correctness  is 
to  us  a  sealed  book." 

In  the  Iron  Mountain  Company  v.  Haight,  39  Cal.,  p.  541,  it  was 
said  by  Justice  Wallace,  in  delivering  the  opinion  of  the  Court: 

"  We  think  that  we  are  bound,  by  the  gravest  considerations 
of  public  order  and  security,  at  this  late  day,  not  to  disturb  the 
rule  (of  constitutional  construction)  so  distinctly  and  authori- 
tatively settled,  especially  in  view  of  the  fact  that  during  all 
this  time  the  clause  of  the  Constitution  under  consideration, 
with  the  interpretation  thus  put  upon  it  by  our  predecessors, 
has  remained  unaltered  by  the  people,  though  several  important 
amendments  to  that  instrument  have  in  the  meantime  been 
adopted." 


[     57     ] 

The  construction  which  the  Court  held  binding  upon  it  in 
that  case,  was  clearly,  almost  admittedly,  erroneous,  and  was 
founded  upon  but  a  single  case — the  case  of  Price  v.  Whitman^ 
8  Cal.,  p.  412.  In  Ex  Parte  Yale,  24  Cal.,  p.  241,  the  Court  per- 
mitted a  question  of  constitutional  construction,  which  had 
been  before  passed  upon,  to  be  reargued,  upon  the  ground  that 
in  the  former  case  there  was  no  record  in  this  Court  of  the 
motion  or  proceeding  upon  which  the  former  opinion  was 
rendered — a  clear  implication,  flowing  from  the  language  of  the 
Court,  that  one  decision  would  have  been  regarded  as  binding. 
In  The  Stockton  and  Visalia  Railroad  Company  v.  The  Common 
Council  of  the  City  of  Stockton,  41  Cal.,  p.  147,  Justice  Wallace, 
in  delivering  the  opinion  of  the  majorit}'  of  the  Court,  says,  on 
page  178: 

"As  we  have  already  said,  under  the  rule  laid  down  by  this 
Court  in  JVapa  Valley  Railroad  Company  v.  Napa  County,  30  Cal., 
p.  437,  this  legislative  determination  is  conclusive  upon  this 
Court.  It  was  there  held  that  'railroads  concern  the  public 
interest  as  matter  of  legal  judgment,'  and  that  when  the  Legis- 
lature had  determined  that  a  particular  road  in  fact  concerns 
the  public  interest,  its  determination  in  that  respect  is  not  oi)en 
to  be  reviewed  by  this  Court.  Upon  that  authority,"  said 
the  learned  Judge,  "  we  are  precluded  from  any  examination 
into  the  principal  question  which  the  respondent  has  argued 
here." 

Here  is  a  full  application  of  the  rule  stare  decisis.  Are  we 
now  to  learn  that  if  a  determination  in  one  case  precludes  the 
Court  from  any  examination  into  the  question,  that  four,  five,  or 
six  determinations  of  a  question  leave  it  open  to  debate?  In 
the  same  case,  said  Justice  Crockett,  in  his  concurring  opinion, 
"with  an  unbroken  line  of  decisions  on  this  point  (a  constitu- 
tional point  involved  in  the  case),  running  through  so  long  a 
period,  and  emanating  from  Courts  of  the  highest  authority  in 
this  country,  it  is  now  too  late  to  inquire  whether  the  question 
has  been  settled  properly  or  otherwise."  And  Justice  Sprague 
concurred  in  the  decision  in   that  case,  upon  the  sole  ground 

8 


[     SB     ] 

that  the  question  presented  in  the  ease  was  no  longer  an  open 
one.  Justice  Temple  concurred,  solely  upon  the  ground  that 
he  regarded  the  questions  involved  as  settled.  He  said:  "I 
differ  from  much  of  the  reasoning  of  my  associates,  and  if  the 
questions  were  new,  should  be  inclined  to  agree  with  the 
respondent  upon  the  main  question  discussed.  To  overturn  the 
almost  unbroken  line  of  decisions  now,  however,  would  not 
establish  a  rule  of  decision,  but  would  make  an  exception 
merely,  in  the  current  of  authorities.  It  would  shake  the  con- 
fidence of  every  one  in  the  stability  of  judicial  decisions,  and 
would  add  nothing  to  the  force  of  the  limitations  upon  legisla- 
tive power." 

That  a  tax  levied  upon  a  solvent  debt  does  not,  as  against  the 
owner  thereof,  impose  a  double  burden,  is  too  obvious  for  argu- 
ment; the  owner  pays  but  one  tax,  and  that  upon  a  single  piece 
of  property,  namely:  the  solvent  debt.  The  question  ought  not 
to  be  an  open  one  in  this  Court.  Since  the  decision  in  The  People 
Y.  IfcCreery,  the  Constitution  has  been  amended  at  least  once  by 
the  people.  They  have  acquiesced  in  the  construction  placed 
upon  Section  13,  Article  XI,  by  this  Court.  To  depart  from  a 
long  line  of  decisions,  deliberately  made,  would,  to  use  the  lan- 
guage of  Justice  Temple,  "  shake  the  confidence  of  every  one  in 
the  stability  of  judicial  decisions."  I  do  not  bebeve  this  Court 
will  make  that  dej)arture. 

A   COURT    OF     EQUITY    WILL     NOT     EN.JOIN     THE    COLLECTION    OF    THE 

PUBLIC    REVENUES, 

We  come  now  to  the  consideration  of  the  last  point  presented 
for  argument:  Has  a  Court  of  equity  the  right  to  enjoin  the 
sale  of  property  for  taxes? 

Mr.  Chief  Justice  Wallace — The  Court,  as  at  present  advised, 
is  with  you  on  that  point. 

Mr.  Haymond — Then  it  will  be  unnecessary  for  me  to  present 
any  argument  upon  the  subject;  and,  so  far  as  I  am  concerned, 
thanking  the  Court  for  the  attention  with  which  its  members 
have  listened  to  my  remarks — necessai'ily  extended — these 
cases  are  respectfully  submitted  for  its  consideration. 


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